PCRLJ 2014 Judgments

2014 P Cr. L J 16

[Federal Shariat Court]

Before Rizwan Ali Dodani, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

MULLAH ARIF alias AROO---Appellant

Versus

The STATE---Respondents

Criminal Appeal No.10/Q of 2011 L.W. and Criminal Murder Reference No.2/Q of 2011, decided on 27th June, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd--- Appreciation of evidence--- Benefit of doubt---Only eye-witness of the incident was complainant, who got injured in the occurrence---Complainant had stated that he could not see the faces of accused persons as they had muffled their faces, but he could identify them from their body structure---No identification parade was carried out---Statement of the complainant, at the most was supportive of the fact that alleged occurrence did take place---Statement of other star witness was a narration of what he heard from accused while accused had confessed his guilt before the Police Officials in the Police Station---Such confession of accused was inadmissible under the law, but Trial Court had relied upon that piece of evidence while awarding death penalty to accused---When no substantive evidence and probable proof was available on record with regard to the involvement of accused in the commission of the crime, then the factor of mere pointation of place of occurrence by accused, had no worth---Co-accused had been acquitted by the Trial Court relying on same set of evidence---Case was that of no evidence---Prosecution had failed to bring home guilt of accused beyond doubt---Benefit of doubt was always to be given to accused---Impugned judgment being not sustainable under the law, conviction recorded and sentence awarded to accused by the Trial Court were set aside---Accused was acquitted and released, in circumstances.

2000 PCr.LJ 2064; 2001 PCr.LJ 86; 1992 SCMR 2088 and PLD 1985 FSC 20 ref.

Shams-ur-Rehman for Appellant.

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

Date of hearing: 12th June, 2013.

2014 P Cr. L J 69

[Federal Shariat Court]

Before Sheikh Ahmad Farooq, J

NAWAZ alias NAJEE---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.26-L of 2010, decided on 23rd May, 2013.

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

----S. 354---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Assault or criminal force to woman with intent to outrage her modesty, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Allegation of an attempt to commit illicit carnal intercourse with the victim girl---"Attempt---Scope---All witnesses of the complainant had also unanimosity stated in their respective statements that accused after removing the shalwar of the victim was attempting to commit sodomy with her---Trial Court charged accused of having made an attempt to commit zina-bil-jabr with the victim which was punishable under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Neither the complainant alleged in his complaint, nor the witnesses had levelled any allegation of making an attempt by accused to commit zina-bil-jabr with the victim---Trial Court did not charge accused with the relevant offence which was punishable under S.377 read with S.511, P.P.C.---Complainant had not produced any independent witness in support of allegation---One witness was wife of the complainant, while other was the real brother of the complainant---Independent witness had admitted in his cross-examination that he had not seen the occurrence---Complainant never got the alleged victim medically examined after the incident---Complainant and remaining witness did not specifically state that accused had also put off his own shalwar---Accused had not taken alleged victim inside his house or any other premises---No person could take the risk of committing sodomy with a girl in an open area---Even if considered the alleged act of accused in juxtaposition with the offence falling within mischief of S.354, P.P.C., same was also not established from the evidence of the complainant beyond reasonable shadow of doubt---Complainant never produced the shalwar of the victim to Investigating Officer---Accused neither assaulted nor used any criminal force against victim indicating his intention to outrage her modesty---Main ingredients of S.354, P.P.C., which were "assault" and used of "criminal force" were lacking in the case---Case of the complainant was doubtful and in case of doubt, benefit thereof must accrue in favour of accused as a matter of right and not of grace---Complainant having failed to prove case against accused beyond reasonable doubt, impugned judgment was set aside, accused was acquitted of the charge---Accused who was on bail, his bail bond stood discharged and the sureties were ordered to be released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principles---When there was a doubt, benefit thereof must accrue in favour of accused as a matter of right and not of grace---For giving 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; not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Mian Jameel Akhtar for Appellant.

Nasir Mahmood, D.D.P.P. for the State.

A.D. Butt for the Complainant.

Date of hearing: 23rd May, 2013.

2014 P Cr. L J 136

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

ANSER PERVAIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.94/L of 2008, decided on 12th June, 2013.

Penal Code (XLV of 1860)---

----S. 354---Assault or criminal force to woman with intent to outrage her modesty---Appreciation of evidence---Victim, a school girl---Delay in lodging the F.I.R. had been fully explained---Incident was immediately reported to the Headmistress of the School---Victim had given full account of the incident by stating that accused forcibly untied the string of her shalwar; and tried to commit zina-bil-jabr with her---On her hue and cry, her mother reached there and therafter accused ran away---Defence plea taken by accused did not appeal to prudent mind---Accused was rightly convicted and sentenced by the Trial Court---Appeal filed by accused having no force, was dismissed---Sentence awarded to accused, was reduced from two years' rigorous imprisonment to one year's rigorous imprisonment with payment of fine of Rs.5,000---Benefit of S.382-B, Cr.P.C., already extended to accused, would remain intact.

Ch. Imtiaz Ullah Khan Warraich for Appellant.

Zahid Younas, Deputy Public Prosecutor, Punjab for the State.

Date of hearing: 12th June, 2013.

2014 P Cr. L J 206

[Federal Shariat Court]

Before Rizwan Ali Dodani and Shahzado Shaikh, JJ

WALI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.7/I of 2013, decided on 2nd July, 2013.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Two prosecution witnesses, who claimed to have seen the occurrence were chance witnesses and their names were not mentioned in the F.I.R. as witnesses---Five persons, including complainant, were alleged to be present at the spot, but none of them made any effort to chase accused persons---All witnesses, including father of deceased, stated that they had seen accused beating the deceased, but none of them dared to intervene or interfere with accused for the rescue of deceased---Was highly improbable that the complainant left his son in unconscious injured condition at a deserted place, and he himself went to Police Station for registration of the report---Accused were not named in the F.I.R., even the complainant had not given any details about the features of accused persons---Identification parade of accused was conducted in Police Station, where the complainant and prosecution witnesses had claimed to have identified accused persons, but no role was attributed to accused persons, which they performed at the time of occurrence---DSP/SDPO, who supervised identification parade, was not produced as witness to verify details of identification parade---No recovery of snatched articles was effected from accused---Nothing had been established or discovered on the disclosure of accused---Complainant had made many improvements in his statement---Medical evidence, was also not helpful to the prosecution, because the oral account did not support the medical evidence---Owner of robbed motorcycle, who was present at the time of occurrence, was not present at the time of identification parade---Persons who claimed to have identified accused, had made contradictions---Present was a case of no evidence and occurrence had not taken place in the manner as disclosed in the F.I.R.---Trial Court had failed to apply its judicial mind to the evidence available on the record, which was not sufficient and free from reasonable doubt to record conviction against accused---Impugned judgment passed by Trial Court, was set aside---Conviction and sentence awarded to accused, were set aside and accused was released, in circumstances.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; Abdul Ghani alias Fazal Ghani v. Muhammad Sharif and another PLD 2009 Pesh. 44; Riaz Ahmed v. The State 2010 SCMR 846; PLD 2007 Quetta 12; AIR 1936 PC 253; PLD 1950 BJ 5 and 2005 SCMR 277 ref.

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

----Arts. 38 & 39---Disclosure before the Police---Legal value---Disclosure before Police had no legal value.

Zahoor-ul-Haq Chishti for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 2nd July, 2013.

2014 P Cr. L J 232

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.72/L of 2010, decided on 11th June, 2013.

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

----S. 10---Zina or zina-bil-jabr liable to Tazir---Appreciation of evidence---Benefit of doubt---Prosecution story, appeared to be improbable as there was inordinate delay of three days in lodging the F.I.R. and explanation given by the complainant with regard to said delay, was not convincing---Rape was allegedly committed by accused with the wife of the complainant, but he kept mum for three long days---Natural course would have been that complainant should have immediately proceeded to the Police Station for lodging the F.I.R.---Prosecution story was unbelievable and the witnesses were related to the complainant---No person from the Mohallah had either witnessed the incident or heard about it, as nobody had come forward as a witness---Lady Doctor, had negated the story of alleged victim by stating that she had no fresh scar on her body and no sign of violence was present---Clothes of alleged victim were clean and were neither torn nor stained with semen---Prosecution having failed to prove the charge against accused, Trial Court was not justified to convict and sentence accused---Conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted of the charge by giving him benefit of doubt.

Sikandar Zulqarnain Saleem for Appellant.

Zahid Younas, Deputy Public Prosecutor, Punjab for the State.

Date of hearing: 11th June, 2013.

2014 P Cr. L J 292

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J. and Rizwan Ali Dodani, J

BILAL AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.3/P of 2011, decided on 29th May, 2013.

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

----Ss. 302(b), 392 & 394---Qatl-e-amd and robbery---Appreciation of evidence---Injured witnesses--- Phenomenon of substitution---Applicability---Injured prosecution witnesses remained consistent in their testimonies in terms of material particulars and corroborated statement of complainant, so also corroborated statements of police officials who reached at scene and arrested accused red-handed at the spot with crime weapon and snatched money---Empties recovered from spot and crime weapon matched vide Forensic Science Laboratory report---Question of deliberation and substitution of offender did not arise---Federal Shariat Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

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

----Ss. 302 & 321---"Qatl-e-amd" and "Qatl-bis-Sabab"---Distinction---Accused was convicted by Trial Court for committing Qatl-e-amd---Plea raised by accused was that it was not Qatl-e-amd but it was Qatl-bis-Sabab---Validity---Accused made effective firing with fire arm at persons chasing him as a result three were got injured grievously one of them died in hospital later on---Such act of accused was without any reasonable doubt and reflected clear intention of accused to cause death or bodily injury of persons in order to stop them from apprehending or chasing him---Offence completely came under the purview of Qatl-e-amd and not under Qatl-bis-Sabab---Trial Court rightly convicted accused and sentenced him under S.302(b), P.P.C.---Sentence was maintained in circumstances.

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

----S. 392---Robbery---Vicarious liability, principle of---Scope---In commission of offence of robbery, every member shares vicarious liability for each and every act done during the offence.

Shakil Khan Gillani for Appellant.

Alamgir Khan Durrani, Deputy Advocate-General for the State.

Date of hearing: 29th May, 2013.

2014 P Cr. L J 374

[Federal Shariat Court]

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

NADEEM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.4/L, 5/L and Criminal Reference No.1/L of 2012, decided on 2nd July, 2013.

(a) Criminal trial---

----Principles to be followed---Prosecution was duty bound to prove its case on the strength of its own evidence, and accused was presumed to be innocent till he was proved guilty---Accused was considered a favourable child of law, and he could take any plea, however, absurd or false it could be, but he could not be punished for his flaws or falsity in his plea, or his failure to prove the plea taken by him---Accused would be entitled to its benefit as a matter of right in case of any doubt, not being artificial---Appreciation of evidence in a criminal case was never governed by a mathematical formula; and no hard and fast rule could be laid down for accepting or rejecting evidence, because in each case, the circumstances varied; and court had to consider the evidence upon its intrinsic value---Deposition made by a witness, was always scrutinized in the light of attending circumstances---Not the quantity of the evidence that was necessary to establish the charge, but the quality, with which the court was satisfied as regarded to its truthfulness and reliability---Witnesses as a rule, were weighed not counted, and in such case, the court had to confirm the presence of the witnesses at the time of occurrence; and get satisfied that statement of a prosecution witness was consistent; the version of incident given by him was confidence-inspiring; his character was above suspicion; he had stood the test of cross-examination; and his testimony was unimpeachable---If the testimony of even a single witness was unbiased, consistent, reliable, trustworthy, and unimpeached, it could legitimately form basis for conviction of accused---Such an evidence, should not be considered in isolation, but the whole of it should be considered together and its accumulative effect must be weighed and given effect.

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

----Ss. 10(4) & 11---Penal Code (XLV of 1860), Ss.337-H(2), 337-L(2) & 458---Zina-bil-jabr liable to Tazir, kidnapping, abducting or inducing woman to compel for marriage, doing act rashly or negligently, causing hurt, lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Challan in the present case was initially submitted in the Anti-Terrorism Court, and all the private prosecution witnesses, including the complainant, the victim and the injured witness, exonerated all accused persons, stating that accused who were unknown, had muffled their faces; and that accused present in the court, were not those who had assaulted the complainant party, abducted alleged abductee, and subjected her to zina-bil-jabr---After making said first statement in the Anti-Terrorism Court, the victim took a somersault and filed an application to Anti-Terrorism Court for making another statement and gave different version---Reasons given by the victim lady for making inconsistent statements in the court were threats extended by accused party---Validity---Victim during her second statement recorded by the same court, implicated accused persons for abducting and subjecting her to zina-bil-jabr---Father, the complainant himself appeared for second time and again exonerated the accused persons---Two versions made by the prosecution witnesses, were self-contradictory; and two contradictory statements about the same occurrence, could not be considered truthful---Genuine doubt had arisen about said prosecution witnesses, who blew hot and cold in the same breath; and showed least respect for telling the truth, by being capable of changing their versions---Witnesses were worthy of no credence, even if they were natural witnesses---Prosecution witnesses had neither proved nor explained the alleged threat, extended by whom, when accused had already been arrested, and all the prosecution witnesses had also exonerated them and given them a clean chit---Story of prosecution was improbable on the face of it---Throwing a wider net to implicate all the elders, whose ages ranged between 50 to 54 years, had raised a very serious doubt about veracity of the prosecution version---Circumstances of the case as narrated by the victim did not appeal to any prudent mind---Motive mentioned by the prosecution had also not been established by any evidence---Material discrepancies were noticed in the prosecution case---Victim was medically examined, but positive chemical report on swabs, was not conclusive, as she was a married lady, and had remained with her husband before the medical examination---No DNA test was conducted, and alleged places where zina was committed, were also not specifically located in the site plan---Material infirmities and discrepancies, had weakened the case of prosecution, and had made it highly doubtful---Conviction and sentences awarded to accused persons were set aside and they were acquitted and released extended them the benefit of doubt.

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

----Art. 150---Hostile witness---Evidence of hostile witnesses could not be brushed aside merely on the ground that they were declared hostile, inasmuch as the portion of evidence advantageous to the parties, could be taken into consideration, but the court should be extremely cautious to consider veracity of the evidence on the basis of its intrinsic worth.

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

----Preamble---Law did not make any distinction in the matter of appreciation of evidence in a case under Anti-Terrorism Act, 1997 or under normal criminal law---Credibility of witnesses had to be measured with the same yardstick, whether it was an ordinary crime or a crime striking terror in society---Law did not make any distinction either in leading of evidence in its assessment---Rule was one and the same, that was intrinsic worth of testimony and the fact, that it stood the test of cross-examination---Contradictory versions of the prosecution witnesses made before Anti-Terrorism Court and then before court of ordinary jurisdiction, would shake the entire foundation of the prosecution case---By no stretch of imagination, it was possible to reconcile the conflicting statements of the same prosecution witnesses regarding the same event---Said contradiction would sufficiently furnish a clue to veracity of the testimony of those witnesses, and shake their trustworthiness.

(e) Criminal trial---

----Witness---Proof---Principles---Probabilities of a case as a material test in judging of the credibility of a witness---Probabilities of a case, were a material test in judging of the credibility of a witness---Concept of probability and the degrees of it, could not be expressed in terms of units to be mathematically enumerated; as to how many of such units would constitute proof beyond reasonable doubt---Unmistakable subjective element existed for the evaluation of the degrees of probability and the quantum of proof---While uniformed legitimization of trivialities would make a mockery of administration of criminal justice, the protection given by the criminal process to the innocent person, was not to be eroded at the same time.

Abid Saqi for Appellants.

Ch. Waseem A. Bhaddar for the Complainant.

Nasir Mehmood Sial, Deputy District Prosecutor-General for the State.

Date of hearing: 31st May, 2013.

2014 P Cr. L J 551

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

IMRAN ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.190/L of 2007, decided on 7th October, 2013.

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

----Ss. 302(b), 201, 377 & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, causing disappearance of evidence of offence or giving false information, sodomy, kidnapping or abducting in order to subject a person to unnatural lust, common intention---Appreciation of evidence---No evidence was available against co-accused to the effect that he either participated in the commission of murder of the deceased, or committed sodomy with him---Role of co-accused was that he committed the offence of removing and causing disappearance of the dead body of the deceased in order to screen accused from legal punishment within the meaning of S.201, P.P.C.---Conviction of co-accused under S.302(b), P.P.C. and under S.377, P.P.C., read with S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not called for, and same could not be justified by prosecution evidence---Conviction recorded and sentence awarded by the Trial Court to co-accused under Ss.302(b), 377, P.P.C., read with S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were set aside and he was acquitted from the charges---Co-accused was established to have actively participated along with accused in causing disappearance of the dead body of the deceased---Trial Court rightly convicted co-accused under S.201, P.P.C. and awarded him appropriate punishment of five years' R.I. along with fine.

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

----Ss. 302(b), 34, 201 & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, common intention, causing disappearance of evidence of offence or giving false information, sodomy, kidnapping or abducting in order to subject a person to unnatural lust---Appreciation of evidence---If accused was convicted under S.377, P.P.C., there was no occasion for the Trial Court to convict and sentence him under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, because accused had not abducted or kidnapped the deceased and evidence on record showed that deceased voluntarily accompanied accused to his "havaili" in order to unfasten his goats---Necessary ingredients for constituting an offence falling within the mischief of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not available in the evidence of the prosecution---Conviction of accused under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 being not sustainable, was set aside to that extent---Commission of offence under S.377, P.P.C., had fully been proved against accused by the medico-legal report, coupled with the report of Chemical Examiner, which was positive---Defence had not been able to shake evidence of prosecution witness as well the report of Chemical Examiner, in that respect---Trial Court, in circumstances had rightly convicted and sentenced accused for commission of offence under S.377, P.P.C.---Evidence of prosecution witnesses, with regard to commission of offence under S.302(b), P.P.C., was in line with prosecution story and except some minor inconsistencies in the evidence of said witnesses, defence had not been able to shake their veracity, especially when accused was already known to them, being the resident of the same locality; and there was no doubt about the identification of accused---Defence had also not taken any plea to satisfy the court for the false implication of accused---F.I.R. was got lodged with promptness, and accused was nominated in the F.I.R.---Dead body was recovered at the pointation of accused---Motorcycle used for transporting the dead body and 'Danda' allegedly used in the commission of offence was also got recovered at the pointation of accused---Ownership of motorcycle, was not denied by accused---Accused, in circumstances, was rightly convicted and sentenced under S.302(b), P.P.C., which was neither illegal nor against the evidence on record, and was maintained.

1995 SCMR 1345 and 2013 YLR 15 ref.

Gulzar Khan v. The State PLD 1963 (W.P.) Pesh. 178 rel.

Muhammad Maqsood Buttar for Appellants.

Khawaja Mehmood Ahmad for the Complainant.

Muhammad Akhlaq, DPG Punjab for the State.

Date of hearing: 4th October, 2013.

2014 P Cr. L J 603

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

JAVED alias JEDI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.343/L and 347/L of 2004, decided on 8th October, 2013.

Penal Code (XLV of 1860)---

----S. 452---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3), 18 & 19---House-trespass after preparation for hurt, assault or wrongful restraint, commission of zina-bil-jabr liable to Tazir, attempt to commit zina-bil-jabr---Appreciation of evidence---Complainant, alleged victim, neither in the F.I.R., nor in her statement had levelled allegation of commission of zina, or even attempt to commit zina by accused---Only allegation against said accused as in the F.I.R. as well as in the statement of the victim that he was present with dagger at the time of occurrence, but the Trial Court convicted accused by holding him guilty of facilitating the commission of zina by co-accused, and awarded him the sentence of four years' R.I. with fine---Conviction of said accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the Trial Court, being without evidence, was set aside---Only offence proved against accused was one covered by S.452, P.P.C., but the sentence of four years' R.I. was awarded by the Trial Court, which was too harsh to sustain---While maintaining the conviction of accused under S.452, P.P.C., sentence of four years awarded to accused, was reduced to one already undergone, which would sufficiently meet the ends of justice---Sentence of fine would remain intact---Victim in the F.I.R. alleged that co-accused had attempted to commit zina with her, but while appearing in the court she made improvement by stating that co-accused had committed zina-bil-jabr with her---Such improvement could not be accepted; nor any reliance could be placed on her evidence, especially when the victim did not produce any independent witness to corroborate her statement---Father of victim who made improvement in his statement, his statement had become more weak, when his two statements were not only in conflict with the contents of the F.I.R., but also unworthy of credit---Father of the victim had never seen the incident---Only medical evidence as well as the report of Chemical Examiner, with regard to sexual intercourse with the victim, ipso facto could not connect accused with the commission of offence---Prosecution had failed to prove the allegation of commission of zina with the victim by co-accused---Judgment of Trial Court convicting and sentencing co-accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with S.19 of said Ordinance, was set aside---Conviction of co-accused as recorded by the Trial Court under S.452, P.P.C., was unexceptionable as his wrongful entry into the house of victim, was fully established---Finding no fault in the judgment of the Trial Court, to that extent, appeal of co-accused was dismissed by Federal Shariat Court maintaining his conviction under S.452, P.P.C.---Accused persons having already undergone a sufficient period of sentence awarded to them under S.452, P.P.C., ends of justice would be sufficiently met, if the sentence awarded to them by the Trial Court under S.452, P.P.C. was reduced to one already undergone.

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Shafique and others v. The State and others 2010 SCMR 385 and 2010 SCMR 495 rel.

Aziz Ahmad Chughtai for Appellants (in Criminal Appeals Nos.343/L and 347/L of 2004).

Ms. Muqadass Tahira, APG Punjab for the State.

Date of hearing: 8th October, 2013.

2014 P Cr. L J 770

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J. and Dr. Fida Muhammad Khan, J

The STATE---Appellant

Versus

KHALIL and 2 others---Respondents

Criminal Appeal No.6/P of 2008, decided on 18th February, 2014.

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

----S. 17(3)---Penal Code (XLV of 1860), S. 412---Criminal Procedure Code (V of 1898), S.417(2-A)---Haraabah, dishonestly receiving property stolen in commission of dacoity---Appeal against acquittal---Prosecution case mainly rested on the recoveries allegedly effected on the pointation of accused---Said recoveries were doubtful for the reasons that those had been effected from the houses of accused persons, but provisions of S.103, Cr.P.C. had not been complied with---Neither any independent witness had been associated with said recoveries, nor any one from the elders of the locality was associated---Said recoveries were not produced before the Magistrate soon after its recovery---Police having failed to observe the legal procedure, such recoveries had no sanctity in the eyes of law---Bank where occurrence had taken place, was situated in most busy place, but not a single witness was ever associated with the proceedings, who could have lent any support to the solitary statement of the only eye-witness---No confessional statement, or other substantive evidence existed that could have been made basis for the case of prosecution---Case being of circumstantial evidence, and recovery of currency notes being legally doubtful, Trial Court had rightly acquitted accused persons from the charge---In absence of any illegality or infirmity, appeal against acquittal being misconceived, was dismissed, in circumstances.

2010 SCMR 222; 2009 SCMR 230; 2007 SCMR 1390; 2013 PCr.LJ 772; 2013 PCr.LJ 1683; 2012 PCr.LJ 1699; 2013 PCr.LJ 1110 and 2012 PCr.LJ 285 ref.

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

----S. 417(2-A)--- Appeal against acquittal--- Scope and principles.

Mujahid Ali Khan, Deputy Advocate-General, Khyber Pakhtunkhwa for the State.

M. Ajmal Lateef and Abdul Fayaz for Respondents.

Date of hearing: 16th January, 2014.

2014 P Cr. L J 819

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Mst. ZAHIDA PARVEEN---Petitioner

Versus

MUHAMMAD AFZAL, A.S.-I. and another---Respondents

Criminal P.S.L.A. No.7/L of 2010, decided on 3rd October, 2013.

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

----S. 417---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Penal Code (XLV of 1860), S.337-L(2)---Attempt to commit an offence, causing hurt---Petition for leave to appeal against acquittal---No allegation by the petitioner that she was subjected to rape by the respondent/accused, her only allegation was that accused attempted to commit rape with her---Act of accused did not constitute attempt to commit zina within the meaning of S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Occurrence took place at the spur of the moment, and no evidence was produced by the petitioner that accused had any intention or preparation to commit zina with her---Trial Court, in circumstances, had committed no illegality or irregularity in acquitting accused from the charge under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with S.337-L(2), P.P.C.---In the absence of any criminal intention to commit zina, accused could not be said to have attempted to commit zina with the petitioner---No medical evidence had been produced by the petitioner to prove allegation that she was given beating by accused---Medico-legal certificate, was not produced before the Trial Court in order to constitute the offence within the meaning of S.337-L(2), P.P.C.---Mere allegation by the petitioner/complainant, not supported by any independent evidence could not constitute the offence---Even the mother and the brother of the petitioner, could not be considered as independent or confidence-inspiring witnesses---Impugned judgment did not suffer from any defect---Special leave to appeal to the petitioner against impugned judgment, was dismissed, in circumstances.

Javed Iqbal and another v. The State PLD 1985 FSC 141 ref.

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

----Ss. 410 & 417---"Appeal against conviction" and "appeal against acquittal"---Criterion for deciding "appeal against conviction" was different from the "appeal against acquittal"---Judgment of acquittal should only be interfered with when the same was perverse and suffered from misreading of evidence, non-reading of evidence, and a gross injustice had been done.

2009 SCMR 985 rel.

Mian Makshoof Amjad for Petitioner.

Petitioner in person.

2014 P Cr. L J 934

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J. and Dr. Fida Muhammad Khan, J

The STATE---Appellant

Versus

ZAFAR IQBAL---Respondent

Criminal Appeal No.38/P of 2004, decided on 18th February, 2014.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.324 & 353---Criminal Procedure Code (V of 1898), S. 417(2-A)---Haraabah, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty---Appeal against acquittal---Complainant and a Police constable, were the only star witnesses available with the prosecution---Complainant who had nominated none, had admitted that at the time of occurrence, the face of accused was muffled and he could not say with certainty as to whether accused present in the court was the same person who had snatched amount from him---Statement of another witness was also of a general nature---Recovery, though was effected in the presence of said witness, but he was not a marginal witness of any recovery memo---None of said two witnesses had given specific statement regarding accused being the actual offender, after their statements, rest of the proceedings would have been ineffective, and wastage of time---Accused, had rightly been acquitted by the Trial Court---Judgment of the Trial Court which suffered from no infirmity or illegality, could not be interfered with by Shariat Court---Appeal against acquittal, was dismissed, in circumstances.

Secretary Home N.-W.F.P. v. Muhammad Ayaz Khan and others PLD 1996 Pesh. 76; Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Khan v. Sajjad and 2 others 2004 SCMR 215; The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1; Imtiaz Asad v. Zain ul Abidin 2005 PCr.LJ 393; Muhammad Anwar v. Mst. Shagufta Ahmad and 2 others 2004 PCr.LJ 1071; Saqlain Haider v. The State 2005 YLR 2800; Muhammad Tahir v. the State 1991 PCr.LJ 644; Muhammad Asghar alias Nannah and others 2010 SCMR 1706; Muhammad Siddique v. Muhammad Shahnawaz and others 2009 SD 162 and State through the Advocate-General N.-W.F.P. PLD 1996 Pesh. 43 ref.

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

----S. 417(2-A)---Appeal against acquittal---Reappraisal of evidence---Scope---Appellate Court, would not on principle, ordinarily interfere but instead give due weight and consideration to the findings of court acquitting the accused---Such approach was slightly different from that in an appeal against conviction, where it was only reconsidered to see that benefit of any reasonable doubt, could be extended to accused---Such difference of approach was mainly conditioned by the fact that acquittal would carry with it two well-accepted presumptions that till found guilty, accused was innocent; and that after the trial, a court below had confirmed the assumption of innocence---Acquittal would not carry the second presumption, and would also lose first one, if on points having conclusive effect on the end result, whether the court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally---In either case, the well-known principles of reappraisement of evidence would have to be kept in view when examining the strength of the view expressed by the court below---Same would not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle; must be necessitated by obliging observance of some higher principle.

Mujahid Ali Khan, Deputy Advocate-General, Khyber Pakhtunkhwa for the State.

Gulab Khan Chaudhry for Respondent.

Date of hearing: 16th January, 2014.

2014 P Cr. L J 1048

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

HASHMAT ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.44/I of 2012, decided on 3rd December, 2013.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Criminal Procedure Code (V of 1898), S.345---Kidnapping or abducting in order to subject a person to unnatural lust, sodomy---Appreciation of evidence---Sentence, reduction in---Compromise---Object of accused for taking away victim was only to commit sodomy with him, which fact was also borne out from the prosecution evidence---No evidence was on record to establish that accused removed, or took away the victim from the lawful guardianship in order to attract provisions of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Conviction of accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as additional offence, along with S.377, P.P.C., being not maintainable, was set aside, and accused was acquitted of the said charge---Keeping in view the age of accused, which was 14 years at the time of commission of offence; and that accused was declared innocent in challan case, and said case was cancelled by the court of competent jurisdiction; accused being first offender; and there had been a compromise between the complainant and accused, which though was not binding on the court, but same could be considered as mitigating circumstance---Ends of justice would be sufficiently met, if by maintaining conviction of accused under S.377, P.P.C. as recorded by the Trial Court, his sentence was proportionately reduced---Sentence of 7 years' R.I. with fine of Rs.70,000 awarded by the Trial Court to accused, was reduced to 3 years' R.I. and fine was reduced to Rs.20,000.

Shams Saeed Ahmad Khan v. Shafaullah and another 1985 SCMR 1822; Muhammad Akhtar v. Muhammad Shafique and another 1986 SCMR 533; Sher Abbas Khan and another v. The State 1987 MLD 1164 and Abdul Ghaffar v. The State 1988 PCr.LJ 1446 ref.

Syed Ijaz Qutab for Appellant.

Rai Muddassar Iqbal Kharral for the Complainant.

Nadeem Zafar for the State.

Date of hearing: 29th November, 2013.

2014 P Cr. L J 1280

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J. and Dr. Fida Muhammad Khan, J

ATLAS KHAN alias ATTASI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.33/I of 2013, decided on 4th March, 2014.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Sentence, reduction in---Victim, had directly charged accused of commission of zina with her---Victim had been cross-examined at great length, but nothing fruitful to the defence had been adduced from her statement---Accused was quite known to victim, as he was her relative---Incident being a broad-day occurrence, any misidentification was not possible; and her statement was fully corroborated by Medico-legal Report submitted by Lady Doctor who examined her---Prosecution witness had fully corroborated the statement of the victim---Solitary statement of victim was sufficient for conviction of accused under tazir, if it inspired confidence and found necessary corroboration from an independent source---In the present case, besides the unexplained extremely long abscondance of accused, independent corroboration of testimony of victim, was abundantly available on record---Nothing was to doubt the veracity of depositions made by prosecution witnesses---Alleged contradictions were very minor in nature, and did not affect the main case in any way---After lapse of thirteen years, such small contradictions were quite normal---At time of occurrence S.376, P.P.C. was not in existence, as same was repealed by Offence of Zina (Enforcement of Hudood) Ordinance, 1997, but after promulgation of Women Protection Act in 2006, said section was revived at the time of announcement of impugned judgment---Section 376, P.P.C. being very much in vogue as provided under S.237, Cr.P.C., Trial Court was empowered to convict and sentence accused thereunder, even if accused was not charged with it---Approximate age of accused was 11/12 years at the time of occurrence---Court taking lenient view reduced the sentence of imprisonment from twenty five years' R.I. to 10 years' R.I.---Benefit of S.382-B, Cr.P.C. already extended to accused, would remain intact.

Zia-ur-Rehman and Mati Ullah Khan for Appellant.

Arshad Ahmed Khan, Deputy Advocate-General, Khyber Pakhtunkhwa for the State.

Date of hearing: 24th February, 2014.

2014 P Cr. L J 1337

[Federal Shariat Court]

Before Mrs. Ashraf Jahan, J

ZAHID alias SAJJAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.11-K and 14-K of 2011, decided on 7th February, 2014.

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

----S. 20---Haraabah---Appreciation of evidence---Benefit of doubt---F.I.R., had been lodged by the complainant as per facts disclosed by his cook in whose presence six persons, five with open faces and one with muffled face entered into the house of complainant---No description about appearance of said accused persons was disclosed in the F.I.R.---F.I.R. was also silent as to which of the culprit had pointed pistol at the prosecution witness at the time of offence, or caused him fists and kicks blows---Star witness of the prosecution, who was the only eye-witness of the alleged crime, in his evidence, though had deposed that accused present in the court were same, but he had not assigned any specific role to any of the accused---No independent witness of the vicinity was examined to support the alleged incident---No recovery had been made from accused; and no corroboratory piece of evidence was available against accused to connect them with the commission of crime---Identification parade had been held jointly in respect of three accused persons; and witnesses of that identification, were not eye-witnesses of the case---No explanation was for six days delay in holding identification parade---Solitary eye-witness had not come forward to identify accused before the Magistrate---No reliance could be placed upon identification memo, which was neither in accordance with law, nor was supported by any witness---Identification parade, in circumstances had lost its value and could not be relied upon at all---Mashir of arrest had admitted that he was relative of complainant, and was already available there at the time of arrest---Manner in which mashir had been arranged, and arrest had been made, appeared to be doubtful---Conviction no doubt could be awarded on solitary evidence of one eye-witness, but such evidence should have been confidence-inspiring, which fact was lacking in the present case---Eye-witness had given contradictory evidence regarding arrest of accused---No other incriminating evidence, such as recovery of stolen articles, or the pistol used in the crime, was there---In absence of any sort of corroboratory piece of evidence, no reliance could be placed on mere contradictory verbal assertions of the only eye-witness---No plausible reason was available for upholding the conviction of accused persons by the Trial Court---Conviction and sentences of accused persons, were set aside by extending them the benefit of doubt, they were acquitted of the charge, and their bail bonds stood cancelled and sureties discharged.

Shafqat Mehmood and others v. The State 2011 SCMR 537 ref.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 distinguished.

Shafqat Mehmood and others v. The State 2011 SCMR 537 rel.

Dur Muhammad Shah for Appellants.

Javed Akhtar Qureshi, D.D.P.P. for the State.

Date of hearing: 27th January, 2014.

2014 P Cr. L J 1450

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J.

ABDUL RAUF and another---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeal No. 14/K of 2013, decided on 27th January, 2014.

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

----Art. 3---Criminal Procedure Code (V of 1898), S. 103---Possessing and transporting cannabis (bhang)---Appreciation of evidence---Case of prior spy information---Non-association of private persons to act as Mashirs---Effect---Benefit of doubt---Police had spy information regarding transportation of narcotics through a truck---Accused and co-accused, who were driver and cleaner of the said truck respectively were stopped at a check point by police---Forty (40) plastic bags containing cannabis (bhang) were found in the truck, and each bag weighed 20 kilograms---Complainant and Investigating Officer of the case was a police official, and another police official acted as Mashir of recoveries---Accused and co-accused were convicted by Trial Court under Art. 3 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to three years' imprisonment with a fine of Rs. 10,000 each---Validity---Admittedly police had prior knowledge of the transportation of narcotic but it did not associate any private person to act as Mashir---Complainant/police official admitted in his cross-examination that when he received spy information in the morning, different people were present there but he did not call on anybody to act as Mashir---Prosecution in such circumstances had failed to prove the charge against accused and co-accused beyond any reasonable doubt---Appeal was allowed and accused and co-accused were acquitted of the charge by giving them benefit of doubt.

Badar-uz-Zaman v. The State PLD 1987 FSC 9; Abdul Waheed v. State 1999 PCr.LJ 1595; Javed v. State 1994 PCr.LJ 954; Abdul Majid v. State 1996 PCr.LJ 309; Nek Muhammad v. State PLD 1995 SC 516; Naik Muhammad v. State 2000 MLD 2003; Ghani-ur-Rehman v. State 1996 PCr.LJ 347; State v. Bashir PLD 1997 SC 408 and Noor Hussain v. State 1996 PCr.LJ 181 ref.

Muhammad Zeeshan Adhi for Appellants.

Javed Akhtar Qureshi, Deputy District Public Prosecutor for the State.

Date of hearing: 27th January, 2014.

2014 P Cr. L J 1477

[Federal Shariat Court]

Before Dr. Agha Rafiq Ahmed Khan, C.J., Allama Dr. Fida Muhammad Khan and Mrs. Ashraf Jahan, JJ

MUHAMMAD HASSAN alias SHARIF and others---Appellants

Versus

The STATE and others---Respondents

Jail Criminal Appeal No.26/K, Criminal Appeal No.27/K of 2010 and Murder Reference No.1/K of 2011, decided on 27th February, 2014.

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

----S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Dacoity with murder, haraabah---Appreciation of evidence---Benefit of doubt---Inordinate delay of 5 days in lodging F.I.R. could not be taken lightly as it cast serious doubts on the case of prosecution---Delay in lodging the F.I.R. could only be condoned when such delay had been adequately explained---Casual attitude and inordinate delay in lodging F.I.R. without any plausible explanation, had created serious doubts about the truthfulness of the prosecution story---Prosecution had not examined the only eye-witness regarding causing firearm injuries to the deceased---No doubt, it was the prerogative of the prosecution to examine the witness of its choice, but omission to examine the only eye-witness, that too, in a case where murder of an innocent person had taken place, had weakened the whole prosecution case---Neighbours, who entered the house of complainant just after the incident, and also broken the locks of the house, had not been examined by the prosecution---Such omission on the part of prosecution was fatal to the case of prosecution---Material contradictions in the ocular evidence of the complainant and his wife, and their inconsistent versions, had created serious doubt about their veracity and truthfulness---No description of accused persons was given in the F.I.R., nor it was mentioned that accused would be identified upon seeing---When accused were with muffled faces at the time of occurrence, and no description of them was given in the F.I.R., then how complainant and other witnesses could claim that they had identified accused person during identification parade---Identification parade was delayed for 12 days without any explanation---Role of accused having not been described by the witnesses at the time of identification parade, same would be considered as an inherent defect, and identification parade would lose its value and same could not be relied upon---Failure of Police to take private mashirs, was clear violation of S.103, Cr.P.C.---There being no recovery of crime weapon, two empty cartridges produced by the complainant, could not by itself connect accused persons with commission of offence---No doubt ocular as well as medical evidence was on record with regard to death of the deceased, but evidence as to who caused the death, was missing in the case---Whole evidence being suffering from inherent deficiencies, same was not sufficient to connect accused with the commission of crime---Accused persons, could not be convicted on the basis of their vague or fake defence as it was the prosecution which had to prove its case beyond the shadow of reasonable doubt to get their conviction---Prosecution having failed to discharge its burden satisfactorily, accused persons were entitled for benefit of doubt, which was accordingly extended in their favour.

Ahmed Sher v. State PLD 1995 FSC 20; Muhammad Fayyaz v. State 2012 SCMR 522; Sabir Ali v. State 2011 SCMR 563; Bashir v. State 1995 SCMR 276; Shafqat Mehmood v. State 2011 SCMR 537; Jamal Khan v. State 2011 SCMR 546 and Ghulam Akbar v. State 2008 SCMR 1064 ref.

Muhammad Nadeem v. State 2011 SCMR 872; Mazhar Ali v. State 2005 SCMR 523 and Khadim Hussain v. State 2010 SCMR 1090 distinguished.

Shafqat Mehmood v. State 2011 SCMR 537; Ghulam Rasul's case 1988 SCMR 557; Mahmood Ahmed's case 1995 SCMR 127; Khadim Hussain's case 1985 SCMR 721 and Sabir Ali alias Fauji 2011 SCMR 563 rel.

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

----S. 154---F.I.R., object and purpose---Purpose of lodging F.I.R. was to set criminal law in motion and to bring on record first hand spontaneous information about the occurrence of crime---Main object of recording F.I.R. promptly was to provide a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story.

(c) Criminal trial---

----Evidence---Circumstantial evidence---Conviction on circumstantial evidence---Accused could be convicted on the basis of such evidence, if the chain had not been broken, and each and every circumstance connected with the other.

Muhammad Zeeshan Adhi for Appellants (in Jail Criminal Appeal No.26/K of 2010).

Muhammad Ghulamullah Chang for Appellant (in Criminal Appeal No.27/K of 2010).

Abrar Ali Khichi, Assistant Prosecutor-General, Sindh for the State.

Complainant in person.

Date of hearing: 29th January, 2014.

2014 P Cr. L J 1542

[Federal Shariat Court]

Before Rizwan Ali Dodani and Mrs. Ashraf Jahan, JJ

ZAKIRULLAH and another---Appellants

Versus

Mst. SAFIA BIBI and another---Respondents

Criminal Appeal No.6/P of 2013 and Jail Criminal Appeal No.29/I of 2013, decided on 6th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 395, 376, 457 & 337-A(i)---Robbery, rape, lurking house-trespass by night, causing Shajjah-i-Khafifah---Appreciation of evidence---Names of accused persons had categorically been mentioned in promptly lodged F.I.R., assigning the role of commission of dacoity, zina as well as house-tresspass---Statements of three star witnesses, remained consistent in material particulars with regard to offences committed by accused persons---Said witnesses had been subjected to cross-examination, but they could not be shaken in any manner in respect of what they had stated before the court---Suggestions made in defence, were not worthwhile to be considered being general in nature which could not put any dent in the prosecution story---Victim girl had named both accused persons for commission of zina with her and her statement remained consistent for all material aspects---Defence could not prove that victim girl was a married woman or element of enmity between the complainant and accused persons---Medical evidence, also supported fact of commission of zina with the victim girl; and chemical examination report, was also positive---Statement of prosecutrix, alone, was sufficient to prove the commission of offence of zina by accused persons---No room was available for doubt and deliberation for false implication of accused persons who had been named in promptly lodged F.I.R.---Not imperative for prosecution to get conducted identification parade of accused persons---Fact as to number of culprits alleged to have participated in the offence, had to be proved and determined from the evidence available on record in that regard; and not by the number of persons having been convicted by the court---Number of persons alleged to have participated in offence, having sufficiently been proved by evidence on record conviction for dacoity had rightly been recorded by the Trial Court---Arguments regarding no identification of the recovered gold ornaments, and no matching of semen, were not material, when the names of accused had been mentioned promptly with specific roles for all the offences they had been charged with---Prosecution, having adequately and beyond reasonable doubt proved charges against accused persons, convictions and sentences awarded to accused persons by the Trial Court were maintained, except alteration in sentence awarded under S.457, P.P.C., which was enhanced to ten years from five years, as the house trespass had been committed by night in order to commit heinous offences--- All the punishments, were ordered to run concurrently--- Benefit of S.382-B, Cr.P.C., was also extended to accused persons in respect of all the sentences.

PLD 1967 Dacca 528 distinguished.

Muhammad Riaz and Anees Muhammad Shahzad for Appellants.

Arshad Ahmad, Deputy Advocate-General, KPK for the State.

Date of hearing: 13th February, 2014.

2014 P Cr. L J 721

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

The STATE through DPP and another---Appellants

Versus

RIAZ and 2 others---Respondents

Criminal Appeal No.14 of 2011, Criminal Revision No.12 and Criminal Appeal No.19 of 2011, decided on 21st August, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt---Both eye-witnesses who were examined twice during course of investigation, had illegally improved their statements---Both Investigating Officers had not inspected the site of occurrence during the course of investigation---Site inspection report as well as the site plan had been prepared by Assistant Sub-Inspector of Police along with recovery memos, but name of that important witness did not appear even in the calendar of witnesses---Said important recovery memos and report/site plan, were illegally exhibited through a witness, in the Trial Court who had wrongly and illegally appended his sign on the said documents---Recoveries of fire-arms from accused could not be relied upon, because recovery had been effected after 6 days of arrest of accused---Recovered empty shells of arms were not sent to Forensic Laboratory, which had made case of the prosecution doubtful---All the recoveries of fire-arm had been effected with the help of recovery witness who was real nephew of the deceased---Admission of said recovery witness, could not be brushed aside, wherein he stated that all the recoveries had been effected at one time and from one house against the fact and the record of the case---According to the eye-witnesses, deceased persons were ambushed from three sides, but there was no collaboration of that fact in the case file, rather the fictitious and so-called site plan of occurrence was also silent about that---Dead bodies were not sent for autopsy, leaving the cause of death, a mystery---All the prosecution witnesses were interested ones---Benefit of doubt arising out of circumstances, should go to accused, for which they were entitled not as a grace, but as a right---Accused were acquitted from the charges by setting aside the judgment/order of the Trial Court.

Malik Haq Nawaz and Amjad Hussain for Appellants.

Pir Muhammad and Anisullah for the Complainant.

Assistant Advocate-General for Respondents.

2014 P Cr. L J 923

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

MAQBOOL HUSSAIN and others---Appellants\

Versus

The STATE and others---Respondents

Criminal Appeals Nos.3, 7 and 4 of 2011, decided on 23rd October, 2013.

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

----Ss. 324, 337-D & 34---Anti-Terrorism Act (XXVII of 1997), Ss.7(c) & 19(12)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Attempt to commit qatl-e-amd, jaifah, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Occurrence being that of broad-daylight, question of mis-identity of accused did not arise at all---Delay alleged in F.I.R., which otherwise was justified, was not fatal, in circumstances---Eye-witnesses were subjected to lengthy cross-examination, but nothing material was unearthed to shatter the veracity of their statements, rather cross-examination of accused; had not only established the presence of the complainant as well as the eye-witnesses of the incident, but also the presence of accused---Scene of occurrence, presence of the injured person along with the eye-witness, and also accused, were established beyond the shadow of any doubt---Impeachable, un-shattered and confidence inspiring statement of a single witness was sufficient to bring home the guilt of accused, without any further evidence---Minor discrepancies, in such like cases, should not come in the way of prosecution---Corroborative pieces of evidence, were also went unrebutted---In absence of any infirmity in the judgment/order of the Trial Court, same was maintained to the extent of the accused and his appeal was dismissed--- Appeal of proclaimed offender was accepted by setting aside judgment/order of the Trial Court whereby application under S.19(12) of Anti-Terrorism Act, 1997 was dismissed.

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

----S. 103---Search proceedings---Provisions of S.103, Cr.P.C. would not necessarily be complied with strictly in cases where same was effected on the pointation of accused.

Munir Ahmed for Appellant (in Criminal Appeal No.3 of 2011).

Assistant Advocate-General and Malik Haq Nawaz for Respondent/Complainant (in Criminal Appeal No.3 of 2011).

Shah Baz Ali for Appellant (in Criminal Appeal No.7 of 2011).

Assistant Advocate-General and Malik Haq Nawaz for Respondent/Complainant (in Criminal Appeal No.7 of 2011).

Assistant Advocate-General for Appellants (in Criminal Appeal No.4 of 2011).

Shah Baz Ali for Respondents (in Criminal Appeal No.4 of 2011).

2014 P Cr. L J 943

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

MUHAMMAD RIAZ and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.31 of 2011, decided on 11th September, 2013.

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

----S. 302/34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, common intention, possessing unlicensed arm---Appreciation of evidence---First Information Report did not attribute act of firing to the two accused persons and site plan did not show names of said accused and there was no mention of their presence at any place---Investigating Officer had not attributed any role to said two accused persons---Conviction of said accused persons was not based on any evidence---Mere presence of accused persons, even if admitted without attribution of any specific role in commission of offence, was never sufficient evidence for recording conviction---Conviction/sentence against said two accused persons being wrong, was set aside to their extent.

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

----S. 302/34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Prosecution evidence was based on previous enmity between the parties---Occurrence had taken place at day time, and scene of occurrence, was not disputed---Inquest report had shown that deceased received bullet injuries---Defence had failed to shatter the veracity of the eye-witnesses, who were directly charging one accused for opening fire on the deceased or the complainant---Presence of prosecution witnesses at the scene of occurrence was natural---Statements of the eye-witnesses were corroborated from recoveries and inquest report---Prosecution had established guilt of accused, in circumstances---Quarrel being between the parties, occurrence was a result of spur of the moment, and not pre-meditated---Death sentence awarded to said accused was converted into life imprisonment, but fine of Rs.2,00,000 imposed was enhanced to Rs.7,00,000---Conviction and sentence of said accused for offence of S.13 of Pakistan Arms Ordinance, 1965, was upheld.

Malik Haq Nawaz and Sher Alam for Appellants.

Assistant Advocate-General for the State.

Amjad Hussain and Jahanzeb Khan for the Complainant.

Date of hearing: 11th September, 2013.

2014 P Cr. L J 1256

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

Syed NAWAZ HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.14, 15 of 2010 and Criminal Revision No.12 of 2010, decided on 25th May, 2011.

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

----S. 32---Overriding effect of Anti-Terrorism Act, 1997---Express provision under S.32 in Anti-Terrorism Act, 1997, being a special and later law, embodied overriding effect over the general law, but the concept of said provision was that Anti-Terrorism Act, 1997 did not replace the Code of Criminal Procedure, 1898 on the whole---Legislature, in the special law had provided certain provisions to meet the needs of special law---Provisions of special law, if found inconsistent with the provision of the Code or any other law, the provision of special law would come into operation, with the force available in S.32 of Anti-Terrorism Act, 1997---Said section itself recognized that where no provision had been provided in the special law, the provisions in the Code of Criminal Procedure, 1898 would be in field.

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

----S. 153-A---Anti-Terrorism Act (XXVII of 1997), Ss. 8 & 9---Criminal Procedure Code (V of 1898), S.196---Promoting enmity between different groups, acts intended or likely to stir up sectarian hatred---Prosecution for offences against the State---In view of the sensitivity of the offence under S.153-A, P.P.C. and S.8/9 of Anti-Terrorism Act, 1997, same had been held in law to be an offence against the State, instead of an offence against an individual though the individuals also affect from commission of such nature of offences---Right of prosecution had been given to the State instead of an individual in the general interest of the people---S.H.O., or the informant in the case had lodged the First Information Report, who were not Central/Provincial Government, nor they were the persons duly authorized for the purpose as envisaged under S.196, Cr.P.C.---Proceedings carried out by the court on that report was coram non judice, ab initio void and nullity in the eyes of law---Accused were acquitted from the charges, in circumstances.

2000 PCr.LJ 902; 1999 PCr.LJ 445; PLD 2005 Lah. 631; PLD 1972 SC 271 and 2000 MLD 946 ref.

Mir Akhlaq Hussain, Malik Haq Nawaz and Amjad Hussain for Appellants.

Additional Advocate-General for the State.

2014 P Cr. L J 1301

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Shakeel Ahmed, J

MUHAMMAD SHAFFA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.10 of 2012, decided on 5th May, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No delay in lodging F.I.R., which could affect the merits of the case---Neither any post-mortem report was on the record to prove the contention of the F.I.R. lodger, nor the arm and used empty shells were sent to the expert for his report/opinion---Corroborative evidence required to support the statements of the witnesses, was lacking in the case---Site plan, created a doubt, whether the contention of the witness, or the position given in said site plan, was correct---F.I.R. lodger, did not disclose in his statement and report that the deceased had made any statement before his death---Widow of the deceased had stated that deceased had charged the accused for committing the offence---To rely on the evidence of widow of the deceased, a medical certificate by the competent doctor was required; whether the victim was fully conscious, and was able to make a statement as alleged, but same certificate was missing---Parcel containing empty shells and blood stained earth, did not bear the signatures of the official---Mode of recovery, could neither be termed voluntary from the possession of accused or on his pointation---Prosecution had failed to establish that accused had committed the murder of the deceased in the manner stated in report of F.I.R.---Accused could not be sentenced---Impugned judgment/order passed by the Trial Court, was set aside; accused was acquitted of the charge.

Malik Haq Nawaz for Appellant.

A.A.-G. for the State.

Najeeb Ullah for the Complainant.

2014 P Cr. L J 1349

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J.

Maulvi ALI MUHAMMAD HADI and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.113 of 2013, decided on 8th May, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 107 & 151---Anti-Terrorism Act (XXVII of 1997), S.11-EE---Distribution of disputed booklets---Quashing of order, petition---Incharge Police Choki requested to Magistrate concerned to bound down the petitioners, on the grounds; firstly that they previously were convicted for distribution of disputed booklets among the society; and secondly, that both petitioners were going to disturb public tranquillity and peace of area through their speeches---Magistrate vide impugned order bound down the petitioners under Ss.107/151, Cr.P.C., read with S.11-EE of Anti-Terrorism Act, 1997 and ordered for execution of personal bond worth Rs.500,000 on the same day and date---Validity---Magistrate, holding proceedings did not follow the procedure laid down under Ss.107 & 112, Cr.P.C.---Magistrate did not even serve a show-cause notice to the petitioners before passing an order for a longest period of three years---Requirement of natural justice was that no one should be condemned unheard, but that requirement was not fulfilled---Magistrate was legally bound to refer the matter to respective Sessions Judge, because he himself had no jurisdiction to penalize and seize the liberty of a person for an offence, if committed within his jurisdictional area---Act of Magistrate was miscarriage of justice---Power provided under S.11-EE of Anti-Terrorism Act, 1997, was exclusively vested with DPO/SP, with certain limitation; but that provision of law did not vest any power to SDM to bound down any person on the basis of simple allegation levelled by a low level Police Officer---Magistrate should strictly follow the requirements of law, even should record evidence, where necessary---Impugned order, which had no legal force, and having been passed without jurisdiction, was quashed, in circumstances.

Malik Haq Nawaz for Petitioners.

A.A.-G. for the State.

Ex-Assistant Commissioner Shigar present in person.

Assistant Commissioner Shigar present in person.

2014 P Cr. L J 58

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Sardar Abdul Hameed Khan, JJ

NATIONAL BANK OF PAKISTAN MUZAFFARABAD through Zonal Chief/Regional Chief---Petitioner

Versus

MUHAMMAD HANIF BUKHARI and 2 others---Respondents

Revision Petition No.89 of 2002, decided on 4th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 409, 467, 468 & 471---Criminal Procedure Code (V of 1898), S.439---Criminal breach of trust by public servant, forgery, using as genuine a forged document---Revision against acquittal---Overall appreciation of evidence recorded by the Trial Court, had shown that no offence mentioned in the challan had been made out in the circumstances of the case; rather it lent support to the versions of accused persons; that the complainant due to his personal reason had fabricated whole case---All accused persons had been acquitted of the charges for want of proof, as prosecution had failed to prove case against accused persons---No non-reading or misreading of the evidence by the Trial Court was found---Evidence had been appreciated by the Trial Court in a legal fashion, which resulted in impugned acquittal order---When acquittal order was recorded in favour of accused persons, they would have double presumption of innocence---Order of acquittal recorded in favour of accused persons, was maintained, and revision petition against order of acquittal, stood dismissed, in circumstances.

1991 SCMR 599; 1986 PCr.LJ 843; 1988 MLD 581 and PLD 1997 Lah. 144 ref.

Syed Shahid Bahar for Petitioner.

Noor Ullah Qureshi for Respondents.

2014 P Cr. L J 99

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ABDUL JABBAR---Appellant/Petitioner

Versus

The STATE through Assistant Advocate-General Kotli

and 2 others---Respondents

Appeal/Revision Petition No.3 of 2012, decided on 4-6-2013.

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

----S. 561-A--- Treating appeal or revision as application under S.561-A, Cr.P.C.---Scope---Appeal or revision, could be treated as an application under S.561-A, Cr.P.C.

PLD 1987 Quetta 94; PLD 1990 SC 83; 1995 PCr.LJ 1838; 2000 SCMR 1904 and 2007 PCr.LJ 613 ref.

PLD 1987 Quetta 94 rel.

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

----S. 439-A--- Appeal or revision, would not lie against the order of Sessions Judge/Additional Sessions Judge passed in revision.

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

----Ss. 195(1) & 561-A---Lodging a criminal complaint in a civil matter regarding manipulation of documents (subject-matter of proceedings)---Scope---Litigant in a civil matter, was prevented under S.195(1), Cr.P.C. for lodging a criminal complaint regarding the alleged manipulation of documents, which were subject-matter of said proceedings---Such a complaint, could only be lodged by concerned court after it would come to the conclusion that the document in question was forged.

2007 PCr.LJ 613 rel.

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

----S. 173---Report of Police Officer based on oath made by prosecution witness---Investigating Agency, in the present case, had relied only on an oath made by a prosecution witness and submitted its report under S.173, Cr.P.C.---Validity---Oath proceedings and procedure of swearing upon Holy Quran, was not applicable in criminal cases.

PLD 1990 SC 83 and 1995 PCr.LJ 1838 rel.

Rafi-ullah Sultani for Appellant/Petitioner.

Mallick Muhammad Zarahat Khan for Private Respondents.

Ch. Abdul Razzaq, Additional Advocate-General for the State.

2014 P Cr. L J 729

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Ch. Jahandad Khan, JJ

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

Versus

MUSHTAQ AHMED QURESHI---Respondent

Criminal Appeal No.14 of 2003, decided on 3rd October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 249-A---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Non-production of Qabaz-ul-Wasool in the evidence---Acquittal of accused---Double presumption of innocence---Scope---Prosecution did not produce "Qabaz-ul-Wasool" before the Trial Court---Withholding of such piece of evidence was fatal to the prosecution---Reasons recorded in the impugned order were sound and cogent---Trial Court after appreciating evidence, contents of report under S.173, Cr.P.C. and other documents on record had passed acquittal order---Acquittal recorded in favour of accused had double presumption of innocence---Appeal was dismissed in circumstances.

M. R. Khan, A.A.-G. for the State.

Syed Sarosh Gillani for Respondent.

2014 P Cr. L J 976

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Chaudhary Jahandad Khan, JJ

ARSHAD IQBAL OVERSEER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.16 of 2002, decided on 13th December, 2013.

Penal Code (XLV of 1860)---

----Ss. 468, 467, 409, 471 & 109---Criminal Procedure Code (V of 1898), S.367---Azad Jammu and Kashmir Official Misdemeanour Act, 1948, S. 4---Azad Jammu and Kashmir Ehtesab Commission Act, 1997, S.4---Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, S.11---Azad Jammu and Kashmir Anti-Corruption Act, 1950, S.2(5)---Forgery for purpose of cheating, forgery of valuable security, will etc., criminal breach of trust by public servant, using as genuine a forged document, abetment and corruption---Appreciation of evidence---Benefit of doubt---Ehtesab Judge had passed the general sentences on accused under provisions of different laws, though separate charges had been framed for each offence---Held, it was mandatory for the Ehtesab Court under law that when accused persons were charged and convicted under various provisions of Penal Code; and other laws, then separate sentences under each section had to be passed by the Trial Court; and non-compliance would violate the provisions of S.367, Cr.P.C.---Impugned judgment, conviction and sentence, could not be sustained on that count alone---Ehtesab Court having itself entertained a doubt, had no legal justification to inflict the penal sentence; and accused had a right to the "benefit of doubt"---Judge Ehtesab Court had misconstrued the legal principle of evidence like proof beyond any shadow of doubt---Prosecution having failed to prove the charge against accused, conviction and sentence of accused were set aside for want of proof, in circumstances.

Ali Muhammad and 5 others v. The State 1991 PCr.LJ 2272 and Writ Petition titled Sardar Muhammad Iqbal decided on 22-7-2004 ref.

Ali Muhammad and 5 others v. The State 1991 PCr.LJ 2272; Aksar Ali and 2 others v. Fazal Karim and 11 others 1982 CLC 1309 and Ghulam Muhammad and another v. Muhammad Ashraf and 2 others PLD 1981 SC(AJ&K) 118 rel.

Mushtaq Ahmed Janjuha for Appellants.

Zafar Iqbal and Raja Ansar DCPs for Respondents.

2014 P Cr. L J 1291

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Ch. MUHAMMAD SHAFI---Petitioner

Versus

NOOR DIN and 13 others---Respondents

Criminal Revision No.1 of 2012, decided on 9th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 190---Penal Code (XLV of 1860), Ss. 147, 148, 149, 427 & 452---Rioting, common object, mischief and house-trespass---Summoning of accused who were discharged and placed in column No. 2 of the challan---Scope---Thirteen (13) witnesses had been endorsed as prosecution witnesses in the challan out of which five (5) had been shown as eye-witnesses of the occurrence---Statement of only one witness had been recorded yet and that of remaining eye-witnesses had to be recorded later on---No reliable proof had been placed on record to show that accused were involved in commission of offence---Order with regard to summoning of accused should have been passed after recording statements of all the eye witnesses including the Investigating Officer--- No proof in support of the version taken by the complainant had been placed on record---Application for summoning of accused was premature which could not be allowed in the light of circumstances of the case---Trial Court had recorded the impugned order with sound and cogent reasons---Revision was dismissed in circumstances.

Anees Riaz Arvi for Petitioner.

Ch. Tahseen Ahmed for Respondents.

2014 P Cr. L J 1327

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SHAHROOM---Petitioner

Versus

The STATE through Advocate-General Azad Kashmir---Respondent

Criminal Revision No.6 of 2014, decided on 19th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---For constituting an offence under S.489-F, P.P.C., it was to be proved that the cheque was issued dishonestly discharging of an obligation; and with the knowledge that the cheque would be dishonoured later on---Said facts need further probe and evidence, which could not be determined at bail stage---Mere issuance of a cheque, which subsequently was dishonoured, would not constitute an offence under S.489-F, P.P.C.---Matter in the case was that of further inquiry---Accused was behind the bars, since 11-2-2014---Investigation had been completed and accused had been sent to judicial lock up and he was no more required to the Police for the purpose of investigation and it would serve no useful purpose to keep accused in lock-up---Accused was ordered to be released on bail, in circumstances.

1999 MLD 844; PLD 2013 Lah. 173 and 2010 YLR 624 ref.

Muhammad Siddique Chaudhary for Petitioner.

Muzaffar Ali Zafar, Additional Advocate-General for the State.

2014 P Cr. L J 1567

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

SHAUKAT NAWAZ MIR and 2 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 6 others---Respondents

Writ Petition No.156 of 2014, decided on 15th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 380 & 109---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Prevention of Corruption Act (II of 1947), S.5(2)---Theft in dwelling house, abetment and criminal misconduct---Writ petition---Scope---Quashing of F.I.R.---Process of investigation could not be interfered with by the High Court but when mala fide and misuse of authority on the part of investigating agency was shown, High Court could rescue the person against whom illegal action was being taken by the police---Suit for perpetual/mandatory injunction was filed which was decreed but same was not challenged before any higher forum and same had attained finality---Functionaries of Development Authority were directed to protect the rights of plaintiffs who demolished the illegal construction as was directed by the court---Registration of case against the accused was without lawful authority and violative of judgment of civil court which was also the abuse of law and could not be allowed even where after registration of F.I.R. the investigation had been started by the police---Proper course for the defendants was to challenge the judgment and decree of civil court before the proper forum or at least to file an application before the Trial Court for violation of direction given in the judgment---If any action was taken by the Development Authority against law then proper course for the defendant/affected persons was to file suit for damages---Officers of Development Authority were party in the suit and they were directed to implement the command given in the judgment and their action could not be converted into criminal liability and continuation of proceedings on the basis of impugned F.I.R. would frustrate the final verdict of civil court---F.I.R. was quashed accordingly.

A. Rehman Malik and another v. The State and another PLD 2010 Lah. 353; Rifat Ali Barq v. The State 1991 PCr.LJ 9; Ghulam Rasool Hyderi v. S.D.M. Tribunal Khairpur 1989 PCr.LJ 458; Byramd Avari and others v. The State PLD 1989 Pesh. 145; Mst. Gulnaz Bibi v. Mian Muhammad Younas and 2 others 2003 MLD 1608; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Rana Muhammad Farooque and others v. Aftab Hussain PLD 2003 Kar. 309 ref.

Anwar Ahmad Khan v. The State 1997 PSC (Crl.) 482 and Muhammad Anwar's case PLD 1997 Lah. 15 rel.

Sardar Karam Dad Khan for Petitioners.

Ch. Shaukat Aziz, A.A.-G. for Official Respondents.

Muhammad Yaqoob Khan Mughal and Anees-ul-Arfeen for Private Respondents.

Date of hearing: 15th May, 2014.

2014 P Cr. L J 22

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J. and Noor ul Haq N. Qureshi, J

MUHAMMAD IMRAN SHEIKH---Appellant

Versus

The STATE through SI, P.S. Shalimar, Islamabad---Respondent

Criminal Appeal No.15 of 2013, decided on 27th May, 2013.

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

----Preamble---Appreciation of evidence---Obligation of court---Minor discrepancies---Every criminal case, was to be seen in the light of its own peculiar facts and circumstances and while discharging the duty of safe administration of justice, the courts were under obligation to watch the interest of both the sides; and not the prosecution side alone, irrespective of the nature of offence---Evidence should be tested with utmost vigilance, care and caution, especially in narcotic cases where stern sentences were provided for the offence charged---In order to see whether the discrepancies highlighted by the counsel; and termed by the Trial Court as minor, were such a calibre, which could be easily ignored and overlooked by considering the same as slip of tongue or natural due to passage of long time.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Statements of prosecution witnesses, focusing only to the extent of recovery of charas was found highly discrepant, which could not be lightly ignored---Prosecution witness/Head Constable, who allegedly had seen the proceedings of recovery of charas, did not remember its colour; he also did not know, whether, the charas was in the shape of slabs or otherwise---Investigating Officer, in his statement, admitted that he had not mentioned as to from which drawer, charas was recovered; and that he had not mentioned the number of littars; and also did not mention the colour of the shopping bag in question---Said discrepancies, directly relating to the alleged recovery of charas, could not be termed as minor, rather same had made the prosecution case qua recovery of charas from the possession of accused, as doubtful---Story of the prosecution respecting recovery of charas from accused, being doubtful, could not be believed---While dealing with such like cases, special attention should be paid at the time of apprehension of 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---To convict accused on the basis of such tainted evidence, respecting recovery of charas was against the principles of natural justice---Conviction and sentence of accused, inflicted upon him vide impugned judgment, were set aside, he was acquitted of the charge by giving benefit of doubt, and he was discharged of his bail bonds.

2000 MLD 618; PLD 2005 Kar. 218; 2000 PCr.LJ 760 and 2008 MLD 1333 ref.

Muhammad Imran v. The State 2011 SCMR 1954 rel.

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

----Ss. 9(c), 22, 25 & 36---Possessing and trafficking narcotics---Appreciation of evidence---Stringent sentences having been provided under Control of Narcotic Substances Act, 1997, said Act had to be construed strictly; and relevant provisions 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 become impossible to hold that total commodity recovered from the possession of accused, was narcotics.

Raja Rizwan Abbasi for Appellant.

Shabbir Ahmad Abbasi Standing Counsel for the State.

Date of hearing: 27th May, 2013.

2014 P Cr. L J 202

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD SHAKEEL---Petitioner

Versus

ABID ZULFIQAR and others---Respondents

Writ Petition No.2271 of 2012, decided on 16th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 550---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of vehicle---Vehicle in question was taken into possession under S.550, Cr.P.C. by police alleging to be stolen---Trial Court handed over Superdari of the vehicle to the complainant who got case registered under S.489-F, P.P.C. against petitioner--- Validity--- Complainant had himself exchanged the vehicle and also received cheques of Rs.950,000; it was a concluded agreement and if there was any violation, complainant was supposed to approach Court of competent jurisdiction---Vehicle in question was taken into possession by police official from show room of petitioner which act was illegal, without jurisdiction, unprecedented and offensive to his rights---High Court in exercise of Constitutional jurisdiction set aside order passed by Courts below---High Court directed Superdar of the vehicle to hand over the custody of vehicle to police to further deliver it to petitioner, as the vehicle was never taken into possession under S.550, Cr.P.C.---Petition was allowed accordingly.

Rashad-ul-Musawar for Petitioner.

M. Shahid Kamal Khan for Respondent No.1 along with Respondent No.1 in person.

Javed Iqbal, Standing Counsel, Liaquat Ali, S.-I. and Javed Iqbal, A.S.-I.

2014 P Cr. L J 407

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

AHMAD YAR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.661 of 2013, decided on 25th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Transfer of case---Disclosing of mind by Court---Trial Court, while dismissing post-arrest bail gave specific observations---Effect---By giving specific observations in the order had exposed mind of Trial Court by diving deep into the merits of the case---Trial Court failed to keep in mind that at bail stage only cursory perusal of prosecution evidence and material collected by investigating agency was to be taken into consideration---Order passed by Trial Court was result of excess of jurisdiction and the same was set aside---As Trial Court had already exposed his mind, High Court did not find it safe to allow him to continue with trial---High Court withdrew the case from Trial Court and entrusted to other Court and directed the transferee Court to decide bail application afresh---Case was remanded in circumstances.

Khalid Javed Jeelani v. The State PLD 1978 SC 256 ref.

Sardar Ahmad Khan Maiken for Petitioner.

Sanaullah Zahid, learned Deputy Attorney-General with Ghulam Habib, S.-I. for the State.

2014 P Cr. L J 418

[Islamabad]

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

MUHAMMAD IRSHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.271 of 2005 and Criminal Appeal No.281 of 2006, decided on 21st November, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(c), 316, 148 & 149---Qatl-e-amd, qatl-e-shibh-i-amd, rioting---Appreciation of evidence---Scuffle had taken place between the parties---Presence of accused on the spot could not be denied, as he himself had received injuries---Parties had thrown stones on each other, but it had not been proved on record that accused had caused injury to the deceased with hatchet---Even the statements of eye-witnesses were belied by medical evidence---Doubts had arisen as to whether the occurrence had actually taken place in the way as described by the prosecution or not---Companions of accused had also received injuries, while from the other side only one lady had received injuries---Fact that as to who was the aggressor, and who had been aggressed upon, was also a matter, which could not be proved---No blood was recovered from any place---Alleged hatchet or the sticks were not recovered from the spot---Specific role having been attributed to accused, Trial Court had rightly convicted him, but conviction of accused under S.316, P.P.C., was not correct, for the reason that said section which related to qatl-e-shibh-e-amd, was not applicable because the record had shown that it was a free fight, and in absence of recovery of any weapon, it could not be said that offence was pre-meditated---Accused, in circumstances, would be convicted under S.302(c), P.P.C. and not under S.316, P.P.C.---Conviction of accused was altered and he was convicted under S.302(c), but sentence awarded to accused by the Trial Court, was proper and sufficient, which was accordingly maintained---Benefit of S.382-B, Cr.P.C. given to accused by the Trial Court, would also remain intact, in circumstances.

Muhammad Ilyas Siddiqui for Appellant.

Sardar Muhammad Ishaq Khan for Respondent.

Malik Manzoor Ahmed, Standing Counsel for the State.

Date of hearing: 12th November, 2013.

2014 P Cr. L J 684

[Islamabad (Special Court)]

Before Faisal Arab, Mrs. Syeda Tahira Safdar and Muhammad Yawar Ali, JJ

The FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary Interior Division---Complainant

Versus

General (R) PERVEZ MUSHARRAF---Accused

Complaint No.1 of 2013, decided on 7th March, 2014.

(a) Constitution of Pakistan---

----Art. 90(1)---Executive authority of the Federation, exercise of---Scope---Prime Minister and Federal Ministers---Article 90(1) of the Constitution provided that the executive authority of the Federation shall be exercised by the Federal Government consisting of the Prime Minister and the Federal Ministers through the Prime Minister, being the Chief Executive of the Federation---Federal Ministers were not empowered to exercise the executive authority of the Federation on their own but only through the Prime Minister.

(b) Constitution of Pakistan---

----Arts. 90 & 99(3)---Rules of Business (1973), Rr. 3, 5 & Scheds.-I, II---Executive authority of the Federation delegated by Prime Minister to a Federal Minister---Federal Minister exercising such delegated authority---Scope---Article 90(2) gave the Prime Minister a discretion to either act directly or through the Federal Ministers---Prime Minister was empowered to exercise the executive authority of the Federation all by himself or he may assign any of his functions to the Federal Ministers---Power of the Prime Minister to delegate his authority to the Federal Ministers made them also part of the executive authority of the Federation along with the Prime Minister---Federal Minister through the Secretary of his Division transacted business of the Federation within the sphere circumscribed by the Rules of Business (1973) without seeking recourse to the executive authority of the Federation as provided by Art.90(1) of the Constitution---Once the executive authority of the Federation delegated some of its authority to a Minister, the concerned Ministry exercised delegated authority as if it was being exercised by the executing authority of the Federation; in doing so it could not be said that the delegatees were arrogating to themselves the functions of the Federation---When an action was taken on the basis of the delegated authority within the sphere of the Sched.II of the Rules of Business (1973) which specified the business allocated to the Divisions, it left no room for seeking further sanction from the Prime Minister.

(c) Constitution of Pakistan---

----Art. 90(2)---Rules of Business (1973), R. 3---Ministry/Division/ portfolio under control of Prime Minister---Scope---If the Prime Minister did not assign any portfolio to any of his Federal Ministers it would remain under his direct control as envisaged under Art. 90(2) of the Constitution.

(d) Constitution of Pakistan---

----Arts. 90(1) & 99(3)---Rules of Business (1973)---Act done under the Rules of Business (1973)---Executive authority of the Federation, usurpation of---Rules of Business (1973) were competently framed under Art.99(3) of the Constitution, therefore any act done within its ambit would not be considered to be in conflict with Art.90(1) of the Constitution nor would it amount to usurping the executive authority of the Federation.

(e) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3--- Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4(1)---Constitution of Pakistan, Arts. 90 & 99(3)---Complaint for high treason---Maintainability---Procedure---Person authorized to make a complaint for high treason---Scope---Consultation between Prime Minister and Federal Ministers---Plea of accused that Federal Government as defined in Art. 90(1) of the Constitution consisted of the Prime Minister and the Federal Ministers, hence there had to be a collective decision on their part, but in contravention thereof the decision to file the present complaint was taken solely by the Prime Minister without consulting the Federal Ministers---Validity---Accepting said plea of accused would make provisions of Art. 99(3) of the Constitution redundant and any business of the Federation, if not placed before the Prime Minister and the Federal Ministers for their approval, would be regarded as invalid---Such an interpretation of Art.90(1) of the Constitution would hamper the entire functioning of the Federal Government---Article 90(1) of the Constitution was not incorporated with such an intent---Complaint was held to be maintainable accordingly.

Asghar Ali v. The State PLD 1985 Lah. 258 ref.

(f) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Constitution of Pakistan, Art. 6---S.R.O. 1234(1)/94 dated 29-12-1994---Rules of Business (1973), Second Sched., item No. 18, Serial No. 32 & item No. 21, serial No. 7---Federal Investigation Agency Act (VIII of 1975) , Sched., item No. 14---Complaint for high treason, filing of---"Competent person" authorized to file such a complaint---Scope---Ministry of Interior/Interior Division---"Post specific" authorization---Scope---Present complaint for high treason was filed by the Secretary Ministry of Interior, on the strength of S.R.O.1234(1)/94 issued on 29-12-1994---Legality---Said S.R.O. was still in field and till date was neither rescinded nor withdrawn, therefore, it served the requirement of S. 3 of the High Treason (Punishment) Act 1973--- By virtue of S.R.O. 1234(1)/94 dated 29-12-1994 the Secretary, Interior Division was authorized to file complaint against an accused for an offence of "high treason" as defined under Art. 6 of the Constitution---Such authorization was "post specific" and would remain effective until it was rescinded, withdrawn or modified--- Person who for the time being held the post of the Secretary Interior Division would be regarded as a person authorised to file a complaint under S. 3 of the High Treason (Punishment) Act, 1973---Entry at Serial. No.32, item No.18 of the Second Schedule of the Rules of Business (1973) clearly stipulated that the investigation and prosecution of the cases falling under the Schedule appended to the Federal Investigation Agency Act, 1974, laid within the domain of the Interior Division---Schedule appended to the Federal Investigation Agency Act 1974, also included the offences punishable under the High Treason (Punishment) Act, 1973---Authority to prosecute a case filed under the High Treason (Punishment) Act, 1973 laid with the Interior Division and such authorization would be in addition to the authorization granted to the Secretary Ministry of Interior under the S.R.O. 1234(1)/94 dated 29-12-1994---Furthermore, the entry at Serial No.7 of item No.21 of the Schedule-II of the Rules of Business (1973) provided that legal proceedings and litigation concerning the Federal Government was the function of the Ministry of Law, Justice and Human Rights Division, which could set in motion a legal action on behalf of the Federal Government and could authorize a person to prosecute a case under the High Treason (Punishment) Act, 1973---As long as S.R.O. 1234(1)/94 dated 29-12-1994 was in the field it was not necessary at all that every time when a complaint was to be filed, fresh authorization was required to be issued---Present complaint was held to have been initiated by a competent person in circumstances.

PLD 1993 SC 473 ref.

(g) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---S.R.O. 1234(1)/94 dated 29-12-1994---Complaint for high treason, filing of---"Person" authorized by the Federal Government to file such a complaint---Scope and meaning---Word "person" could be both "individual specific" and "post specific", thus authority to file a complaint on behalf of the Federal Government could be given either to any person, irrespective of any particular post he held, or to a person who for the time being held a particular post---Where authorization was made "individual specific" as against "post specific" the authorized person as long he lived or till such time the authorization was withdrawn, he would be regarded as an authorized person---If the authorization was in favour of a person who for the time being was holding a particular post it shall also be a valid authorization---Any individual who by virtue of holding a particular post was authorized to file a complaint, when ceased to hold such post, his successor to the office would automatically become authorized person until S.R.O.1234(1)/94 dated 29-12-1994 was rescinded, withdrawn, modified or the post itself was abolished.

(h) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3--- Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4--- Complaint for high treason--- Constitution of Special Court--- Selection of Judges for Special Court--- Procedure---Nominations to be made by the respective Chief Justices of the High Courts---Plea of accused that selection of Judges for the Special Court was made in consultation with the Chief Justice of the Supreme Court, which was a violation of the statutory provisions on the subject---Validity---Section 4 of the Criminal Law Amendment (Special Court) Act, 1976 required that the Special Court shall comprise of three serving Judges each of whom was a Judge of a High Court, therefore their nomination was to inevitably come from the Chief Justices of the High Courts concerned, which was exactly what had been done, in the present case---Letters of correspondence between Law, Justice and Human Rights Division and the Supreme Court and the relevant notification issued in such regard, showed that Judges for the Special Court were in fact nominated by their respective Chief Justices of the High Courts and not by the Chief Justice of the Supreme Court---Relevant notification was issued by Ministry of Law, Justice and Human Rights after selecting the senior most three Judges from the five nominated Judges---Plea of accused was held to be without substance accordingly.

(i) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Complaint for high treason---Judges of Special Court---Bias of Judge---Scope---Disqualification of a Judge from hearing a case---Scope---Plea of accused that one of the Judges of Special Court had a bias against him because said Judge refused to take oath under the Provisional Constitution Order (PCO) of 2007 (introduced by the accused while in office of Chief of the Army Staff) as he considered it to be violative of the Constitution; that said Judge, therefore, could not remain impartial to decide the present complaint where one of the charges against the accused was issuance of Provisional Constitution Order (PCO) of 2007; that said Judge, as a member of an Election Tribunal, dismissed election appeal filed by the accused, wherein the imposition of Proclamation of Emergency was the basis to disqualify the accused from contesting the general elections---Validity---Plea of Judge's bias on the basis of his (Judge's) decision in a case previously heard and decided before a different forum was not sustainable---Matter decided within the legal framework would by itself not become a ground to plead bias against a Judge---Person while holding office of a Judge was bound to apply the law to the facts of the case before him without any fear or favour, affection or ill will, and the judicial decision could not be used to allege that he would be biased in any subsequent legal proceedings---Plea of bias raised against Judge in question was held to be not sustainable accordingly.

State of Punjab v. Davinder Pal Singh Bhullar S.C. (India); Locabail v Bayfield Properties [2000] 1 All ER 65 and Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 ref.

(j) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Complaint for high treason---Judges of Special Court---Bias of Judge---Scope--- Doctrine of waiver, applicability of---Disqualification of a Judge from hearing a case---Scope---Plea of accused that one of the Judges of Special Court had a bias against him because said Judge refused to take oath under the Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 (introduced by the accused while in office of Chief of the Army Staff) as he considered it to be violative of the Constitution; that said Judge, therefore, could not remain impartial to decide the present complaint where one of the charges against the accused was issuance of Provisional Constitution Order (PCO) of 2007; that said Judge, as a member of an Election Tribunal, dismissed election appeal filed by the accused, wherein the imposition of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 was the basis to disqualify the accused from contesting the general elections---Validity---Accused neither raised the apprehension of bias before the Judge in question at the time of hearing of the election appeal, nor when the order was challenged by way of a constitutional petition, which was heard by a bench headed by a Judge who was also removed from the office under the Provisional Constitution Order (PCO) of 2007 dated 3-11-2007---Objection as to bias of Judges was also not raised by the accused when he moved bail applications in the High Court in other criminal matters, which were heard by a bench headed by a Judge who was also removed from his office under the Provisional Constitution Order (PCO) of 2007 dated 03-11-2007--- Such objection on the ground of Provisional Constitution Order (PCO) of 2007 was raised for the first time in the proceedings before this (Special) Court, which was a subsequent stage in the same context, therefore, the objection was no more available to the accused.

State of Punjab v. Davinder Pal Singh Bhullar S.C. (India); Locabail v Bayfield Properties [2000] 1 All ER 65 and Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

(k) Bias of Judge---

----Scope--- Disqualification of a Judge from hearing a case---Grounds---Litigant had a fundamental right to have his rights and obligations determined by an impartial court or a tribunal---Judge must not have any interest of his own in the outcome of a case, criminal or civil, which he was to decide---Main factor which was to be considered while deciding an application seeking disqualification (of a Judge from hearing a case) was the existence of the possibility of bias rather than probability of bias based on mere suspicion---In criminal matters if a Judge had any association or relationship either with the complainant or the accused, he should recuse himself from hearing such a case---Basic question in the determination of disqualification of a Judge from hearing a case was whether any benefit or detriment, that was caused to a litigant, was also caused to the Judge---If the answer was in affirmative then the Judge should recuse himself from hearing the case---Personal friendship or animosity between Judge and any member of the public, involved in a case would be sufficient to connect his (Judge's) personal interest in the outcome of litigation and there would be a real apprehension of bias---If such an interest of a Judge came to light or was timely pointed out then it raised a question mark on the credibility of the decision---Judge should not act in his own cause and if he did, it would definitely undermine the public confidence in the integrity of the administration of justice---Judge had a duty that when a matter came before him for a decision he must hear the case and should not recuse himself, if apparently there is no real apprehension of bias---If he did so, then he would avoid public obligation which was entrusted to him as a Judge and would cause delay in disposal of the proceedings---Such an approach would be regarded as undesirable.

R v Gough [1993] 2 All ER 724 and Locabail v Bayfield Properties [2000] 1 All ER 65 ref.

(l) Administration of justice---

----Civil and criminal cases/proceedings based on the same facts---Court not to be influenced by proceedings in the other case---Criminal court should not convict a person merely for the reason that some civil liability had been imposed on him in a civil matter already decided on same set of facts---Civil court cannot impose civil liability merely on account of a decision of a criminal court against the defendant for committing an act which was subject matter of a civil litigation---In each case both civil and criminal, decision was to be given on the basis of the evidence that came on record, without being influenced by a decision given in the other version of the proceedings.

(m) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Complaint for high treason---Judges of Special Court---Bias of Judge---Scope---Disqualification of a Judge from hearing a case---Plea of accused that one of the Judges of Special Court had a bias against him because while working as an Additional Judge of the High Court his tenure was extended by the Chief Justice of the Supreme Court, who had a bias against the accused; that tenure of said Judge of the Special Court was extended by the Chief Justice of the Supreme Court on purely extraneous considerations, ignoring the recommendation of the concerned Chief Justice of the High Court to drop his name---Validity---Said plea of accused was misconceived as the entire matter of extension of tenure of Judge in question was discussed at length by the Supreme Court in the case of Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan (PLD 2011 Supreme Court 407)---Said judgment clearly stated that concerned Chief Justice of the High Court had also recommended name of Judge in question for extension, and had not at all made any recommendations for his name to be dropped---Plain reading of the said judgment made it clear that the concerned Chief Justice of High Court never gave any advice in writing to drop the name of Judge in question, and when the Judicial Commission met, it by a unanimous decision recommended that ten (10) Additional Judges of Lahore High Court be dropped (Judge in question being not one of them)---Decision taken by the Judicial Commission was totally in line with the written advice of the then concerned Chief Justice of High Court---No animosity was attributed to any of the members of Special Court against the accused rather only an apprehension of bias was alleged on certain grounds, which in fact did not attract any rule of disqualification (from hearing the present case)---Plea of bias of Judge was dismissed accordingly.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan PLD 2011 SC 407 ref.

(n) Bias of Judge---

----Objection relating to bias of Judge, raising of---First available opportunity---Doctrine of waiver---Scope---Even in cases which gave rise to a real danger of bias it was generally desirable that objection should be raised at the first available opportunity---Where such an objection was raised at a belated stage, it would be wrong for the Judge to yield to the objection and that party could not subsequently complain that the matter disclosed gave rise to a real danger of bias.

Supreme Court of India titled State of Punjab v. Davinder Pal Singh Bhullar S.C. (India) andLocabail v Bayfield Properties [2000] 1 All ER 65 rel.

(o) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4--- Complaint for high treason--- Constitution of Special Court---Objection relating to bias of all three Judges of the Special Court--- Objection of bias against one of the Judges withdrawn---Effect---Objection of accused (relating to bias of other two Judges of the Special Court) lost its strength when the objection against one of Judges was withdrawn by the counsel for accused---An objection had to stand or fall in its entirety and not in piece meal for the reason that the ground of bias in such context was agitated against all the three Judges and not against the other two---Objection of bias of Judges was dismissed accordingly.

(p) High Treason (Punishment) Act (LXVIII of 1973)---

----S. 3--- Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Complaint for high treason---Judges of Special Court---Bias of Judge---Principle of necessity, applicability of---Plea of accused that one of the Judges of Special Court had a bias against him because said Judge was removed from office on the basis of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 (introduced by the accused while in office of Chief of the Army Staff); that other two Judges of the Special Court were appointed as Judges of High Court due to the fact that former Chief Justice of the Supreme Court was interested in their appointments, and said Chief Justice had a bias against the accused---Validity---Principle of necessity was to be invoked when disqualification was pleaded on certain basis, which if accepted, would leave no Judge available to hear the matter and therefore out of sheer necessity the case was to be heard---Objection regarding bias of Judges of Special Court, if entertained, would result in no category of Judges left to hear the present complaint, due to the fact that at present there were only two categories of Judges in the Superior Courts i.e. those who were removed from the office on account of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007, and those whose appointments were processed when the former Chief Justice of the Supreme Court in question was in office---Principle of necessity was attracted in the present case.

Locabial v. Bayfield Properties [2000] 1 All ER 65 ref.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 rel.

Muhammad Akram Sheikh and Dr. Tariq Hassan assisted by Sardar Asmat Ullah, Naseerudin Khan Nayyer, Ishtiaq Ibrahim, Ch. Muhammad Ikram, Syed Tayyab Mehmood Jafferi, Ch. Hasan Murtaza Mann, Sherjeel Adnan Sheikh, Barrister Sajeel Sheryar, Barrister Natalya Kamal, Mian Moazzam Habib, M. Haider Imtiaz and Faraz Raza for the Complainant.

Syed Sharifuddin Pirzada assisted by Anwar Mansoor Khan, Barrister Muhammad Ali Saif, Ch. Faisal Hussain, Dr. Khalid Ranjha, Ahmad Raza Khan Kasuri, Muhammad Siddiq Mirza and Rana Ijaz Ahmad Khan for the Accused.

Dates of hearing: 1st, 2nd, 16th, 17th, 20th, 21st, 23rd, 24th January, 18th and 19th February, 2014.

2014 P Cr. L J 901

[Islamabad]

Before Riaz Ahmed Khan, J

MURAD AMIR SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.42-M of 2014, heard on 15th April, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 30 & 34---Penal Code (XLV of 1860), S. 336-B---Hurt by corrosive substance---Judicial Magistrate (S. 30, Cr.P.C.), jurisdiction of---Scope---Judicial Magistrate's powers of sentencing---Scope---Under S.30, Cr.P.C. any Magistrate with the powers under the said section was authorized to try any case, where the sentence was not death, however S. 34, Cr.P.C. put an embargo that the Magistrate could not award sentence exceeding seven years---Section 336-B, P.P.C. provided minimum punishment of 14 years, and the Judicial Magistrate could not award such punishment---Case under S. 336-B, P.P.C. was thus exclusively triable by the Sessions Judge and such case could not be sent to the Judicial Magistrate for trial---Illustration.

Jan Muhammad Khan for Petitioner.

Raja Khalid Mehmood Khan, Standing Counsel and Nusrat Ali S.-I. for the State.

Date of hearing: 15th April, 2014.

2014 P Cr. L J 983

[Islamabad]

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

ABDUL SATTAR BAIG and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.744-B, 764-B of 2013 and Criminal Miscellaneous No.4-B of 2014, decided on 29th January, 2014.

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

----Ss. 2(c), 3, 4, 5, Sched. 6 & 11(2)---Prevention of Corruption Act (II of 1947), S.5---Criminal misconduct by public servant---Scheduled offence---Jurisdiction of Special Judge---Scheduled offence specified in Pakistan Criminal Law Amendment Act, 1958, could exclusively by triable by the Special Judge appointed under said Act---Normal offences could be charged and tried together with the Scheduled offences, exclusively triable by the Special Judge; whereas the ordinary court could not try the Scheduled offences coupled with normal offences---Attempt, abetment and conspiracy attached to Prevention of Corruption Act, 1947, or the scheduled offences, were also triable by the Special Court coupled with ordinary offences---Offences triable by Special Judge, would be deemed to be non-bailable---If simple imprisonment was provided by any law, same would be deemed to be punishable with imprisonment of either description---Any other person who acted jointly with the public servant, if committed a Scheduled offence with abetting or attempting to abet or acting in conspiracy with public servant, he would also be tried by the Special Judge as defined in the Schedule of Pakistan Criminal Law Amendment Act, 1958.

Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774; Habib Ullah v. Capital City Police Officer, Lahore and 3 others 2011 PCr.LJ 1826; Mst. Raheema v. The State 2003 YLR 1930 and Haji Muhammad Abbas and others v. the State 1996 SCMR 530 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.395, 411, 420, 468, 471, 409, 170 & 171---Pakistan Arms Ordinance (XX of 1965), S.13---Control of Narcotic Substances Act (XXV of 1997), S.9(a)---Dacoity, dishonestly receiving stolen property, cheating, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust by public servant, personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, possessing unlicensed arms, possessing and trafficking narcotics---Pre-arrest bail, refusal of---Accused after obtaining ad interim bail, had not joined investigation---Prima facie, reasonable grounds existed to believe that accused were involved in commission of offences and did not deserve grant of bail.

1989 PCr.LJ 917 ref.

Sher Afzal Khan, Ajmal Khan Khattak and Wajid Hussain for Petitioners in their respective petitions.

Abdul Sattar Baig, SI/Accused in person.

Sheikh Muhammad Yaqoob, DAG along with Qaiser Masood, Deputy Director (Law), FIA.

2014 P Cr. L J 1019

[Islamabad]

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

TAUQEER SADIQ---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.4199 of 2013, heard on 12th March, 2014.

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

----S. 9 (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Case of further inquiry---In year 2010-2011 natural gas distribution companies made complaint that due to theft and leakage of gas amount of Unaccounted for Natural Gas (UFG) should be increased from 5% to 7 %, accused was then Chairman of Oil and Gas Regulatory Authority (OGRA) and increase was allowed, resultantly causing loss to national exchequer---Accused raised the plea that he alone was not responsible for increase, rather it was decided by Board and that too was in accordance with law---Validity---Board refused to extend increase in next year and the companies approached High Court and under the orders of High Court further extension was granted---It was still to be determined as to whether increase was made with mala fide intention and after getting any illegal gratification or not---Bail could not be withheld simply for the reason that accused had absconded as it was still to be proved whether absence of accused amounted to abscondance or not---High Court in exercise of Constitutional jurisdiction allowed bail to accused---Petition was allowed in circumstances.

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

----S. 9(b)--- Criminal Procedure Code (V of 1898), S. 497---Constitution of Pakistan, Art. 199---Bail, grant of---Principle---While granting bail under Art.199 of the Constitution, principles of S.497, Cr.P.C. are also applicable.

Sardar Asmat Ullah Khan for Petitioner.

Barrister Saeed-ur-Rehman ADPG NAB, Rizwan Ibrahim Satti SPG NAB and Mustansar Hussain, I.O. for the State.

Date of hearing: 12th March, 2014.

2014 P Cr. L J 1071

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Rao FAHD ALI KHAN---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.1853 of 2014, decided on 21st April, 2014.

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

----S. 227---Judicial Magistrate, powers of---Scope---Alteration of charge---Judicial Magistrate was not empowered to include any section, which was exclusively triable by any other Special Court by exercising powers vested in him under S. 227, Cr.P.C.

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

----S. 12---Criminal Procedure Code (V of 1898), Ss. 190 & 193---Cognizance of offence by Magistrate---Procedure---Offence exclusively triable by Special Court/Judge---Where Magistrate had observed applicability of some provision of law, which was neither triable by him nor by the Court of Session, rather it was exclusively triable by the Special Judge, Anti-Terrorism Court, he may return the F.I.R. and final report under S. 173, Cr.P.C. to the prosecution for its onward submission before the court concerned.

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

----Ss. 190 & 193---Cognizance of offence by Magistrate and Court of Session---Procedure---As provided by S. 190, Cr.P.C., the Magistrate had to take cognizance of the offence---After submission of final report under S. 173, Cr.P.C. by the police, if any offence was exclusively triable by the Court of Session, same had to be transmitted by the Magistrate to the Court of Session in view of S. 190(2), Cr.P.C.---Section 193, Cr.P.C. put a bar upon Sessions Court to take cognizance of any offence directly.

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

----S. 23---Criminal Procedure Code (V of 1898), Ss. 190 & 193---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction and vice versa---Procedure---Though S. 23 of the Anti-Terrorism Act, 1997 provided a procedure for transfer of case to the court of ordinary jurisdiction, but same could not be done by by-passing procedural law---Anti-Terrorism Court was not empowered to transfer the case directly to the Court of Session or Additional Sessions Judge without following the procedure laid down under Ss.190 & 193, Cr.P.C.---Likewise Sessions Judge had no authority by virtue of law to transfer or send the case (directly) to any court constituted under the Anti-Terrorism Act, 1997---Both courts (Anti-Terrorism Court and Sessions Court ) had no alternate except to return back the F.I.R. and final report submitted by police to the prosecution or concerned investigating officer for the purpose of its onward process by presenting the same before the court of competent jurisdiction.

Jan Muhammad Khan for Petitioner.

2014 P Cr. L J 1096

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD TANVEER---Petitioner

Versus

The STATE through Anees-ul-Arfeen---Respondent

Criminal Miscellaneous No.80-B of 2014, decided on 26th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-e-amd, common intention, abetment---Bail, grant of---Further inquiry---No role had been attributed to accused, except his presence at the scene of incident---Accused neither was alleged to have fired in the air, facilitated any of co-accused; nor did he make any Lalkara or extended threats of any kind---Mere presence of accused at the scene of incident, would create doubt about vicarious liability---Role of accused would have to be determined during trial after recording of evidence, and the material available on record---Role assigned to accused, having created a reasonable doubt about his participation in the commission of offence, accused could not be detained further merely on the basis of such role, which in view of prosecution story was a vicarious liability---Co-accused had already been granted bail---Kalashnikov allegedly recovered was not found loaded with bullets, which too, created doubt about the involvement of accused in the present case---Matter requiring further probe into the guilt of accused he deserved grant of bail---Accused was ordered to be enlarged on bail, in circumstances.

2011 SCMR 902; 2012 YLR 1309; 2013 YLR 1225; 2013 YLR 1433; 2004 SCMR 1889; 1999 PCr.LJ 1 and 2006 PCr.LJ 1984 ref.

Imran Feroze for Petitioner.

Muhammad Fakhar Hayat Awan for the Complainant of F.I.R.

Muhammad Jahangir Khan Jadoon, Standing counsel with Abdul Sattar, S.-I. with record for the State.

2014 P Cr. L J 1205

[Islamabad]

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

MUHAMMAD WASEEM alias PADRI---Petitioner

Versus

The STATE through Tahir Niazi S.-I. Police Station Abpara, Islamabad---Respondent

Criminal Miscellaneous No.158 of 2014, decided on 24th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Narcotic packed in littars---Samples taken from littars without specifying as to how much quantity was taken from each littar---Effect---Two packets were allegedly recovered from possession of accused containing 4 littars of charas weighing 2150 grams in total---Two samples, each weighing 10 grams, were taken from the two packets, without specifying as to how much quantity was taken from each of the four littars---Report of Chemical Examiner had also not been obtained despite a lapse of four months---Present case was a case of further inquiry---Accused was admitted to bail accordingly.

Raja Rizwan Abbasi for Petitioner.

Jahangir Jadoon, Standing Counsel and Ashraf Azeem, S.I. with record for the State.

2014 P Cr. L J 1223

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

FARKHAND IQBAL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.109-B of 2014, decided on 14th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 468, 471, 409 & 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, criminal breach of trust by a public servant, abetment---Bail, grant of---Further inquiry---Prosecution, itself admitted that there was no apprehension of abscondance of accused who was officer of Grade 21---Despite inquiry conducted for a longest period, the record could not be seized, which had been made basis for registration of the F.I.R.---Case of the prosecution rested upon the documentary evidence secured by the prosecution---Case of the prosecution suffered from deficiencies, which had created room for accused for grant of bail---Case being of further inquiry under subsection (2) of S.497, Cr.P.C., accused was entitled for grant of post arrest bail---Accused was released on bail, in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Syed Muhammad Tayyab for Petitioner.

Jahangir Jadoon, learned Standing Counsel.

Record produced by Qaisar Masud, Deputy Director (Law), Khalid Naeem, Assistant Director (Legal) and Alamdar Shah, Inspector, FIA.

2014 P Cr. L J 1236

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

RAJA SOHAIL---Petitioner

Versus

SIKANDAR KHAN ASJ and 2 others---Respondents

Criminal Revision No.21 of 2014, decided on 24th March, 2014.

Criminal Procedure Code (v of 1898)---

----Ss. 172 & 162---Qanun-e-Shahadat (10 of 1984), Arts. 155 & 157---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd and common intention---Diary of proceedings in investigation---Refreshing of memory by the witness---Scope---Investigation notes should be entered day by day in the case diary specifying as to which information reached to the Investigation Officer from time to time---When investigation began and closed, places visited during investigation, statement of circumstances ascertained throughout the investigation should be recorded in the diary of investigation---Trial Court might send for said police diaries and same might be used not as an evidence in the case but for aid of inquiry or trial--- Neither the accused nor any agent on his behalf should be entitled to call for such diaries or to see them merely that same were referred by the court---Such diaries could be used by the police officer for refreshing his memory if court had used the same for the purposes of contradiction---If some material was placed on record or referred by the Investigation Officer then defence counsel could cross-examine the witness on such particular point but such would not include the case diary when referred by the court to the witness---Revision was disposed of accordingly.

Syed Pervaiz Zahoor for Petitioner.

2014 P Cr. L J 8

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ZAFAR ALI KHAN---Appellant

Versus

HUMAIRA ASHRAF and another---Respondents

Criminal Acquittal Appeal No.347 of 2011, decided on 30th May, 2013.

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

----Ss. 417(2-A) & 249-A---Penal Code (XLV of 1860), Ss. 489-F & 420---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property---Appeal against acquittal---Power of Magistrate under S. 249-A, Cr.P.C. to acquit accused at any stage of the proceedings---Recording of evidence of the complainant---Scope---Accused-lady and her husband looked-after complainant's business affairs---Complainant alleged that accused and her husband cheated him and usurped his money, and on verification of accounts the husband admitted cheating and delivered two cheques, which were dishonoured on presentation---F.I.R. was registered against accused and her husband---Trial Court acquitted accused under S. 249-A, Cr.P.C. by observing that complainant in his statement under S. 161, Cr.P.C. stated that he gave name of accused by mistake, and that neither he had any proof against her nor he intended to proceed against her---Validity---Complainant had disowned making any such exonerating statement in favour of accused under S. 161, Cr.P.C., therefore, proper course for Trial Court would have been to record the evidence of complainant and investigating officer, with an opportunity of cross-examination to the accused so as to ascertain the sanctity of complainant's statement under S. 161, Cr.P.C.---Complainant had made specific allegation against the accused in the F.I.R. to the effect that she and her husband were looking after his business affairs---Impugned order of acquitting accused under S. 249-A, Cr.P.C. was set aside, and Trial Court was directed to record evidence of complainant and investigating officer, whereafter the accused would be at liberty to repeat her application under S. 249-A, Cr.P.C.---Appeal against acquittal was allowed accordingly.

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

----S. 249-A---Power of Magistrate under S. 249-A, Cr.P.C. to acquit accused at any stage of the proceedings---Scope---Recording of evidence of the complainant---Under S. 249-A, Cr.P.C. Judicial Magistrate/Trial Court had the power to acquit accused at any stage of the proceeding if the court was of the opinion that charge against accused was groundless or evidence for recording conviction was insufficient, however in a contested case the court did not have a free hand to acquit the accused at any stage of the case when complainant was pursuing his case and was ready to give evidence to pour himself to cross-examination by accused or his advocate---Acquittal of accused under S. 249-A, Cr.P.C., in such circumstances, without providing opportunity to complainant to record evidence, would not be sustainable in law.

M. Sardar M. Yusuf for Appellant.

Irfan Ali for Respondent No.1.

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

Date of hearing: 30th May, 2013.

2014 P Cr. L J 43

[Sindh]

Before Muhammad Shafi Siddiqui and Syed Muhammad Farooq Shah, JJ

SUNDER JAKHRANI---Applicant

Versus

Haji MUHAMMAD NOOR and another---Respondents

Criminal Miscellaneous Application No. D-77 of 2011 (old), Criminal Miscellaneous Application No. D-230 of 2012, decided on 26th February, 2013.

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

----Ss. 23, 6 & 7---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 364---Application for transfer of case from Anti-Terrorism Court to Court of Session, dismissal of---Evidence of complainant and prosecution witnesses not recorded to determine nature of offence---Effect---Accused and co-accused persons allegedly caused murder of three persons in front of their relatives after abducting them on gun-point---Plea of accused that present case was one of previous enmity and personal vendetta between the parties, therefore, offence alleged neither created any threat to a section of public or community nor it created any sense of fear or insecurity in the society---Application of accused under S.23 of Anti-Terrorism Act, 1997 for transfer of case from Anti-Terrorism Court to Court of Session was rejected---Validity---Alleged offence was committed on a path during day time and allegedly reckless firing was made with weapons of prohibited bore---Admittedly after submission of challan in Anti-Terrorism Court, the prosecution could not examine the ocular, circumstantial, medical and expert witnesses nor any other material was available to ascertain whether any panic, fear and insecurity had been created in the minds of people, therefore at such premature stage severity and nature of alleged offence could not be determined---Plea raised by accused might be agitated and decided after recording of evidence of complainant and atleast two eye-witnesses/star witnesses by the prosecution and thereafter the accused was at liberty to repeat the application for transfer of case from Anti-Terrorism Court to court of plenary jurisdiction---Application was disposed of accordingly.

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

----S. 23--- Power of Judge, Anti-Terrorism Court--- Scope---Jurisdiction to decide whether a case fell within the jurisdiction of Anti-Terrorism Court---Such jurisdiction lay with the Judge of Anti-Terrorism Court under the provisions of section 23 of Anti-Terrorism Act, 1997.

Mehram Ali's case PLD 1998 SC 1445 and Nadeem Butt v. Special Court ATC 2000 SCMR 1086 rel.

Muhammad Iqbal Mahar for Applicant.

Athar Abbas Solangi for the Complainant.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 31st January, 2013.

2014 P Cr. L J 61

[Sindh]

Before Irfan Saadat Khan, J

MURAD UR REHMAN---Applicant

Versus

The STATE and another---Respondents

Bail Application No.981 of 2012, decided on 27th May, 2013.

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

----S. 497(1)---Penal Code (XLV of 1860), S. 295-C---Use of derogatory remarks, etc., in respect of Holy Prophet (p.b.u.h)---Bail, refusal of---Bail sought on ground of statutory delay in conclusion of trial---Defence counsel instrumental in causing delay in conclusion of trial---Effect---Plea of defence counsel that accused was behind bars since the last more than 4 years, and that more than 2 years had passed since charge was framed against him, hence he was entitled to be released on bail on ground of statutory delay---Validity---Defence counsel had taken a number of adjournments---Defence counsel took adjournments because of different reasons including non-availability of flight, illness, death in family, appearance before some other court etc. but she did not deny the fact that such adjournments could not be attributed to the prosecution---Defence counsel lived in a different city and it was for the counsel coming from outstation to make necessary arrangements for appearance before the court either by herself or through her associate---Diary sheets showed that defence counsel had permitted her associate to proceed with the matter but strangely her associate hardly proceeded with the matter on any date---Similarly when defence counsel was either ill, appearing before other courts, was out of the country or there was death in her family, her associate never proceeded with the matter---Court had also accommodated defence counsel on a number of occasions by granting her time when she requested for a date by calling from her cell phone---In absence of defence counsel on a particular date, alternate arrangements could have been easily made---Such conduct on part of defence counsel amply proved that she herself was not vigilant in pursuing the matter before the Trial Court and no lease in such regard could be given to her---Defence counsel and accused themselves were instrumental for the delay caused in conclusion of trial--- Accused was refused bail in circumstances.

Ziauddin v. The State PLD 2012 Sindh 147; Razia Bibi v. The State 2011 YLR 1008; Jamshed Ali v. The State 2012 PCr.LJ 1022; Malik Amjad Pervez v. The State 2012 YLR 1907; Zameer v. The State 2012 YLR 477; Zulfiqar v. The State 1998 MLD 1551; Taj Muhammad v. The State 2011 PCr.LJ 1910; Haji Javed Ahmed v. The State PLD 1997 Kar. 156 and Abdul Razzak Zangejo v. The State PLD 2012 Sindh 218 distinguished.

Abdul Rasheed v. The State 1998 SCMR 897 rel.

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

----S. 497(1)---Bail sought on ground of statutory delay in conclusion of trial---Case diary sheets, significance of---While considering grant/refusal of bail on basis of statutory delay in conclusion of trial, the most important thing was to examine the diary sheets to ascertain whether delay in such regard had been occasioned by the accused or any person acting on his behalf or by the prosecution.

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

----S. 497(1)---Bail granted on ground of statutory delay in conclusion of trial---Scope---Benefit of bail on such ground was only to be given to a person who was diligent in pursuing the matter and was also able to prove that the delay occasioned could not be attributed to him, and that he was neither negligent nor reckless and had not adopted delaying tactics to obtain said relief from the court.

Ms. Sarah Belal and Saman Imtiaz for Applicant.

Nadir Chang for the Complainant.

Saleem Akhtar, Additional Prosecutor-General for the Respondent/State.

Dates of hearing: 26th April and 21st May, 2013.

2014 P Cr. L J 84

[Sindh]

Before Nisar Muhammad Shaikh, J

ALI GHULAM---Applicant

Versus

MUHAMMAD MURAD and 2 others---Respondents

Criminal Revision No.S-68 of 2010, decided on 5th May, 2011.

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

----S.193---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 337-H(2)---Qatl-e-amd, hurt by rash and negligent act and unlawful assembly---Application for joining accused persons (respondents) as accused to face trial---Accused persons were nominated in the F.I.R. along with other persons and were shown as absconders in the interim report/challan---Trial Court accepted the interim report/challan and treated the same as final report---Accused persons allegedly recorded further statements under S.161, Cr.P.C., in which they raised the defence plea of alibi, whereafter police submitted further report exonerating the accused persons---Trial Court accepted said further report of police and dismissed application of complainant (applicant) filed under S.193, Cr.P.C., for joining accused persons as accused to face trial---Validity---F.I.R. was lodged promptly and accused persons were also nominated therein with a specific role of firing at the deceased with their weapons---Such content of F.I.R. was corroborated by statements of prosecution witnesses under S.161, Cr.P.C.---Defence plea of alibi raised by the accused persons at the time of alleged incident, was required to be established by them at trial---Order passed by Trial Court on the interim challan/report was treated as final report, and in the said interim report accused persons were shown as absconders and the Magistrate took cognizance of the case against all the accused including present accused persons---Subsequent/further report submitted by the police before the Magistrate, could not be treated as proof of the innocence of the accused persons before due trial of the case as there was direct evidence available against them---Revision was allowed, impugned order of Trial Court was set aside and was directed to try the case after joining accused persons as co-accused and then to dispose of the case in accordance with the law.

2002 SCMR 63; PLD 2008 Kar. 280 and 2009 PCr.LJ 367 rel.

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

----Ss. 193 & 173---Summoning of accused placed in Column No.2 of the challan---Trial Court can summon the accused placed in Column No.2 of the challan to face the trial and there is no legal bar whatsoever that at the first instance evidence should be recorded to ascertain as to whether prima facie case is made out against them.

2002 SCMR 63 rel.

Ghulam Shabbir Dayo for Applicant.

Syed Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for Respondents Nos.1 and 2.

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

Date of hearing: 5th May, 2011.

2014 P Cr. L J 105

[Sindh]

Before Abdul Rasool Memon and Abdul Malik Gaddi, JJ

SHAFI MUHAMMAD BANGWAR and another--Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.D-296 of 2011, decided on 11th September, 2013.

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

----Ss.9(b), 44 & 45---Criminal Procedure Code (V of 1898), S.561-A---Registration of case---Special Judge, jurisdiction of---Accused involved in case was acquitted of charge of possessing 200 grams of Charas by giving benefit of doubt---Trial Court formed opinion that Charas produced before Court was in fact in possession of applicants (Police officials) and they foisted the same upon accused and passed order for registration of F.I.R. against applicants---Validity---High Court declined to concur with opinion formed by Trial Court, as there was no basis for forming such opinion---Order was passed by Trial Court against applicants in their absence and without notice to them---Applicants were condemned unheard and remarks recorded by Trial Court were not tenable under the law---If there was any lapse on the part of prosecution, even then Control of Narcotic Substances Act, 1997, being special law did not provide for issuance of direction for registration of F.I.R. against applicants/official witnesses and Special Judge Narcotics acted beyond the jurisdiction---High Court expunged direction for registration of case against applicants, as the same was illegal---Application was allowed in circumstances.

Shafi Muhammad Bhangwar and 3 others v. The State PLD 2012 Sindh 527 ref.

Abdul Rahman A. Bhutto for Applicants.

Naimatullah Bhurgri, State Counsel.

2014 P Cr. L J 125

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD RAMZAN and 5 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-286 of 2011, decided on 3rd June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 148---Qatl-e-amd, rioting---Appreciation of evidence---Deceased, then injured, was not treated well by the Doctors---Effect---Fact that injuries and operated parts of the body of the injured had been aggravated and he did not survive could not be ruled out---Prosecution case was full of contradictions and inconsistencies, and evidence did not inspire confidence---Court, in circumstances, could not rely on such type of evidence---Accused persons who were on bail, their bail bonds stood cancelled and surety was discharged---One of accused persons who was in jail, was ordered to be released.

Muhammad Sachal Awan for Appellants.

Syed Meeral Shah, DPG for the State.

Date of hearing: 21st May, 2013.

2014 P Cr. L J 149

[Sindh]

Before Abdul Rasool Memon, J

GHULAM ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.551 of 2010, decided on 7th December, 2012.

Penal Code (XLV of 1860)---

----S. 392---Criminal Procedure Code (V of 1898), Ss.342, 364(2) & 537---Robbery---Examination of accused---Counsel for accused raised objection about non-availability of the certificate on the statement of accused recorded under S.342, Cr.P.C.---Certificate was required under subsection (2) of S.364, Cr.P.C.---Statement bore the signature of accused and the court, but the required certificate was missing from the statement---Accused had not alleged that his statement was not recorded in presence and hearing of the court or the court did not put question to him; that he did not give any replies to the said question to the court; that the court did not record the said reply at all; or recorded them improperly; or that he did not put his signature on his statement; or that the court did not sign the same; or that the record did not contain full and true statement furnished by accused---Non-availability of certificate as required under S.364, Cr.P.C., was irregularity which could be cured under S.537, Cr.P.C.---Objection of counsel for accused, had no force, in circumstances---Accused was identified by prosecution witness in the hospital in presence of complainant and other prosecution witness---Complainant and Police Official had also supported version regarding identification of accused in the hospital---Evidence of both the said persons was consistent on material points and the minor inconsistencies in their evidences were inconsequential in nature---No enmity was alleged by accused against prosecution witnesses for false implication---Recovery of motorcycle of the complainant was held in presence of complainant and his son---Contention of counsel for accused that compliance of S.103, Cr.P.C. had not been made, was without substance because said recovery was not made from any house, but accused himself had led Police to the place of recovery---Prosecution had proved the recovery through Investigating Officer, complainant and his son who were mashirs of recovery, beyond reasonable shadow of doubt---Case of prosecution against accused was based upon the testimony of prosecution witnesses, where statements were consistent on material points and were confidence-inspiring---Contradictions in the prosecution witnesses were minor in nature and immaterial, not enough to shatter the prosecution evidence---Prosecution witnesses though were related inter se, but nothing was brought on record that they had any animus with accused---Case against accused having been established for the charge, judgment of the Trial Court required no interference which was maintained, in circumstances.

Ghulam Murtaza v. The State 2010 PCr.LJ 461; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Shahid v. The State 2008 YLR 288; Azizullah v. The State 2009 YLR 2077; Ilyas v. The State 2011 MLD 712; Muhammad Akram v. The State 2009 SCMR 230; Abdul Ghaffar v. The State 2011 MLD 239; Noor Ahmed v. The State PLD 2005 Kar. 177 and State v. Ajab PLD 1986 FSC 242 ref.

Ahmed Nawaz for Appellant.

Abdul Rehman Kalochi, APG for the State.

Date of hearing: 1st December, 2012.

2014 P Cr. L J 165

[Sindh]

Before Farooq Ali Channa, J

JUMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.95 of 2007, decided on 3rd May, 2013.

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

----Ss. 302(b), 315 & 316--- Qatl-e-amd, qatl-e-shibh-e-amd---Appreciation of evidence---All the eye-witnesses were cross-examined at length---Defence Counsel, during cross-examination had failed to shake their evidence or to extract anything favourable to accused---Evidence of eye-witnesses was corroborated by the other witnesses and the circumstantial evidence---Investigating Officer was also cross-examined at length, but except few minor contradictions, the defence Counsel had failed to bring on record any adverse/remarkable substance, which could cause dent in the prosecution evidence---Minor contradictions inferred from the cross-examination of Investigating Officer were not fatal to prosecution case---All the prosecution witnesses, though were related inter se; complainant and other witnesses were also close relatives of accused person, but both prosecution witnesses had not concealed anything and spoken truth irrespective of apprehension of adverse consequences of admission---Said witnesses were credible and trustworthy witnesses and their evidence was reliable---Occurrence had taken place at about 10-00 a.m. in broad-daylight---Both accused being relatives of prosecution witnesses, were known to them, there was no question of identifying the accused persons mistakenly---Presence of prosecution witnesses at the time of incident found support from the evidence of Medical Officer---Delay of one and half hour in bringing the injured at hospital, seemed reasonable due to distance of about 15 Kilometers between the hospital and place of incident; and before removing the injured to hospital, some time was consumed in arranging the conveyance---No reason appeared to disbelieve the evidence of prosecution witnesses which was in consonance on each aspect of the case---Evidence of said witnesses being unimpeachable inspired confidence, corroborated by medical and circumstantial evidence---Deceased had died due to head injury, there was possibility that he had sustained injury by falling on the ground---Deceased was proved to have fallen down from bicycle due to lathi injuries caused by accused persons which in ordinary course of nature was not likely to cause death---No case of qatl-e-amd, punishable under S.302, P.P.C. was made out---Accused persons, were guilty of offence of qatl-e-shibh-e-amd defined under S.315, P.P.C., punishable under S.316, P.P.C.---Conviction of accused was converted from S.302(b), P.P.C. into S.316, P.P.C. in circumstances.

Niaz v. The State PLD 1960 SC 387; Niaz and others v. The State PLD 1962 SC 269; Muhammad Ismael v. Khushi Muhammad and 7 others PLD 1974 SC 37; Abdul Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Muhammad Ali v. The State 1985 SCMR 203; Sharif and another v. The State 1973 SCMR 83; Rashan v. The State PLD 1977 SC 55 and Gul Khan v. The State 1999 SCMR 304 ref.

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

----Ss. 302(b), 316 & 331---Qatl-e-amd, qatl-e-shibh-e-amd---Payment of diyat---Sentence, quantum of---Accused persons had remained behind the bars approximately for a period of 9 years and 9 months---Accused had also earned remission for 3 years; they, in circumstances, had served out the substantial period of their sentence---One of the accused was aged about 85 years, keeping in view the period accused persons had remained in jail and the advance age of one accused, accused persons were sentenced by High Court to a period they had already undergone---Accused were also liable to pay diyat amount of Rs.2,90,327 as was determined by the Authority in 36 equal instalments.

Aftab G. Nabi and Raham Ali Rind for Appellants.

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

Date of hearing: 24th April, 2013.

2014 P Cr. L J 186

[Sindh]

Before Muhammad Ali Mazhar and Farooq Ali Channa, JJ

Sardar AMIN FAROOQUI through his real Brother---Petitioner

Versus

THE CHAIRMAN (NAB) and another---Respondents

Constitutional Petition No.D-2833 of 2013, decided on 2nd November, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 17(d)---Criminal Procedure Code (V of 1898), S.497(2)---Constitution of Pakistan, Art.199---Constitutional petition---Corruption and corrupt practices---Bail, grant of---Further inquiry---Scope---Accused was Principal Appraiser of Customs who was arrested by NAB for embezzlements in Afghan Transit Containers Scam---Disputed transactions were 49 in number and NAB had prepared reference for each transaction---Plea raised by accused was that single petition was sufficient to seek bail in all references---Validity---When Court after considering material such as F.I.R., statement of prosecution witnesses recorded under S.161, Cr.P.C., recoveries and defence plea, if any raised, reached to the conclusion that matter required further probe/ inquiry, then bail should not be withheld as punishment---Further inquiry was a question which must have some nexus with the result of the case for which a tentative assessment of material on record was to be considered for reaching just conclusion---Case of further inquiry pre-supposed tentative assessment which might create doubt with respect to involvement of accused in crime---Neither it was possible, at bail stage, to decide the role of accused nor reasonable ground existed in the present case, that accused alone was responsible in commission of crime, being a Principal Appraiser---Role of accused persons was to be seen in depth including chain of all customs officials who were assigned or deputed to perform different tasks and responsibilities in clearing of containers and to fix and or shift responsibility---Role of each accused involved in procedure was to be examined separately which could only be done by Trial Court after framing of charge---Case of accused required further inquiry---Bail was allowed in circumstances.

State v. Ramesh M. Udeshi, Ex-Secretary, Board of Revenue PLD 2003 SC 891 and Ramesh M. Udeshi v. State 2002 PCr.LJ 1712 ref.

Syed Mehmood Alam Rizvi and Zakir Leghari for Petitioner.

Syed Amjad Ali Shah, D.P.-G., NAB and Imdad Palijo, I.O. of NAB for Respondents.

Date of hearing: 11th October, 2013.

2014 P Cr. L J 219

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD SALEEM---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.30 and Miscellaneous No.1165 of 2013, decided on 2nd September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Exhumation of dead body, application for---Application of the complainant for exhumation of dead body to obtain material for DNA test was dismissed---Accused, contended that more than one year to death of deceased having passed, no fruitful result could be achieved by exhumation of dead body---Validity---Contention was repelled as there was no time limit for the disinterment of the body---Exhumation of dead body could be ordered on the request of or on the information; even a stranger for the purpose to know the actual cause of death, so that criminal machinery be set in motion---In the present case, applicant/complainant who was closely related to the deceased, was justified in making application for exhumation of dead body of the deceased to know the cause of death---Application for post-mortem exhumation of the deceased, having been dismissed by the court below without applying judicial mind to the facts of the case, impugned order would be treated as non-existent in law; and could be declared without lawful authority, and of no legal consequence.

Mst. Ghazala Begum and others v. District Magistrate Khanewal 1996 PCr.LJ 389; Javed Iqbal v. The State and others 1996 MLD 626; Muhammad Ramzan and others v. The State and others 1987 SCMR 272; 2010 MLD 1681; Muhammad Ramzan and others v. The State and others 1987 SCMR 74 and Medical Jurisprudence and Toxicology, Chapter IV by Modi rel.

Khursheed Javed for Applicant.

Shakeel Ahmed for Accused.

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

2014 P Cr. L J 229

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

MEHWISH MUGHAL---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Home Department and 10 others---Respondents

C. P. No.D-103 of 2013, decided on 23rd January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 154--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R. under constitutional jurisdiction of High Court---Scope---Mala fide of complainant---F.I.R. lodged in response to filing of a suit---Effect---Wife (petitioner) had filed a suit for dissolution of marriage and recovery of dowry articles against her husband---Subsequently husband's family lodged three F.I.Rs. against the family members of the wife, out of which two F.I.Rs. were disposed of in cancel class, while one was challaned, wherein father of wife, who appeared to be 70 years of age, had been shown as an accused---Prosecution could not point out any evidence/material collected against the father of the wife---Even if the allegations contained in the three F.I.Rs. were admitted, even then no offence was made out against family members of the wife---Mala fide of the husband and his family members, who lodged the F.I.Rs., was palpably floating on the record, as the F.I.Rs. were lodged after filing of suit by the wife---Husband and his family had caused harassment to the wife and her family members without legal justification---Non-interference by High Court in the present matter would tantamount to allowing illegality and highhandedness to perpetuate, and the court would also fail in preventing the abuse of process of the court---Present case was a fit case for quashing of proceedings---Constitutional petition was allowed, and the impugned F.I.Rs. and pending proceedings on the basis thereof were quashed.

Hakim Ali and another v. Province of Sindh through Secretary and 10 others PLD 2009 Kar. 278 rel.

G. M. Bhutto for Petitioner.

Muhammad Iqbal Awan, APG along with SI Gulab Channa and SI Noor Ahmed Kharal of Police Station Gadap Town, SI Muhammad Rasheed of Police Station Darakshan and SI Hussain Mehdi of Police Station Paposh Nagar for Respondents.

2014 P Cr. L J 261

[Sindh]

Before Salahuddin Panhwar and Ahmed Ali M. Shaikh, JJ

BEEJAL and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.D-813 of 2012, decided on 13th December, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(i), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, shajjah-i-khafifah, ghayr-jaifah damiyah, rioting, rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Non-repetition of fire---Injury on non-vital part of body---Effect---Rule of consistency---Applicability---Accused and co-accused allegedly made straight fires at the complainant party, which hit the injured person on his right arm---F.I.R. was lodged with a delay of 24 hours for which there was no plausible explanation---Injury sustained by injured person was not grievous and did not attract the prohibitory clause of S.497, Cr.P.C.---Fire shot was not repeated even though injured person was at the mercy of accused and co-accused---Alleged injury was on right arm of injured person, which was not a vital part of the body---Another co-accused assigned with a similar role had already been granted bail, therefore, accused and co-accused were qualified for the same treatment on the rule of consistency---Alleged incident took place at night time and accused persons were allegedly identified under the light of electric bulbs, therefore, matter required further probe---Accused and co-accused were released on bail accordingly.

Waqas Ahmed and another v. The State 2005 SCMR 1496 and Dost Muhammad v. The State PLD 1997 Lah. 589 ref.

Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500 rel.

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

----Ss. 497 & 154---Bail---Name of accused appearing in the F.I.R.---Effect---Mere appearance of one's name in the F.I.R. would not necessarily disentitle him from concession of bail, unless other material, prima facie, linked accused with the alleged offence, eliminating all rooms of doubts and further probe.

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

----S. 497---Bail---Case of counter-version---Effect---Right of accused to bail was not necessary in every case of counter-version.

Qurban Ali Malano for Applicants.

A. R. Farooq Pirzada for the Complainant.

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

2014 P Cr. L J 279

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHAMMAD ISMAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-62 of 2013, decided on 28th August, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(iii) & 337-F(iv)---Criminal Procedure Code (V of 1898), S.225--- Attempt to commit Qatl-e-amd, ghayr-jaifah mutalahimah and ghayr-jaifah mudihah---Appreciation of evidence---Charge, error in---Effect---Motive, non-proof of---Accused was convicted by Trial Court and sentenced to imprisonment of various terms---Validity---Motive of incident was shrouded in mystery and witnesses did not highlight issue of motive rather suppressed the same---Mere enmity was not motive unless it was fully elaborated through evidence and its degree whether it was so grave that in retaliation persons could take extreme step of eliminating a person---Delay in lodging F.I.R. was fully explained and testimonies of eye-witnesses and medical officers remained unshaken and had given straight forward evidence in very natural way completely unperturbed and High Court declined to brush aside only on the ground that they were related inter se---Even an interested witness could be a truthful witness, depending on the circumstances of the case---Accused received relevant documents in which injuries and nature of injuries were clearly mentioned, hence, accused was not taken by surprise or misled---High Court declined to interfere with conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

1991 PCr.LJ 83; PLD 1969 SC 278 and 1992 SCMR 1583 ref.

S. Madad Ali Shah and Ayaz Ali Gopang for Appellant.

S. Meeral Shah, DPG for the State.

Date of hearing: 29th July, 2013.

2014 P Cr. L J 334

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

ABDUL LATEEF BROHI---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director General---Respondent

Criminal Accountability Appeal No.12, M.A. No.10215 of 2011, Criminal Accountability Appeal No. 13 and M.A. No.10218 of 2011, decided on 16th August, 2012.

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

----Arts. 61 & 84---Handwriting and signatures---Opinion of expert---Comparison by Court--- Scope--- Court has discretionary power to refer disputed handwriting for seeking opinion from handwriting expert--- Other party or challenging party has right to cross-examine such handwriting expert to establish veracity or soundness of his opinion---Opinion of handwriting expert is only what it states it is an opinion---Notwithstanding its such discretion, court has all requisite powers of undertaking exercise of comparing handwriting or signatures on its own and thereafter arriving at conclusion as to genuineness or otherwise of handwriting or signatures, as the case may be.

Gulzar Nathani v. Naeem Ahmed 2010 YLR 358 ref.

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

----Ss. 9(a)(vi) & 32---Criminal Procedure Code (V of 1898), Ss. 426 & 342---Misuse of authority---Suspension of sentence---Non-putting of incriminating evidence to accused in statement under S.342, Cr.P.C.---Accused was convicted by Trial Court for committing offence of corruption and corrupt practices--- Plea raised by accused was that evidence on the basis of which he had been convicted was not put to him by Trial Court during statement recorded under S.342, Cr.P.C.---Effect---If a piece of evidence was not put to accused, that evidence could not be used against him---At bail stage, in appeal, it was to be seen whether there was superficial and apparent mistake of fact or law in the judgment of court below---Plea raised by accused was not without force---Sentence was suspended by High Court in circumstances.

Muhammad Anwar v. Hafizuddin 1984 CLC 2871; Abdul Ghaffar v. The State 2011 MLD 239 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----Ss. 9(a)(iv) & 32---Criminal Procedure Code (V of 1898), Ss. 426 & 342---Corruption and corrupt practices---Suspension of sentence---Accused was convicted by Trial Court for committing offence of corruption and corrupt practices---Plea raised by accused was that he had no connection with disputed land---Validity---Stand taken by accused in his civil suit was contradictory to the stand taken by him while statement under S.342, Cr.P.C. was recorded---On one hand accused claimed to be owner of land in question and on the other hand, while his statement under S.342, Cr.P.C. was recorded, he stated that he had no connection with the land, therefore, he was not entitled to concession of bail---Application was dismissed in circumstances.

Mrs. Ismat Mehdi for Appellant (in Criminal Accountability Appeal No.12 and M.A. No.10215 of 2011).

Noor Muhammad Senior Special Prosecutor, NAB for Respondent (in Criminal Accountability Appeal No.12 and M.A. No.10215 of 2011).

Khawaja Naveed Ahmed for Appellant (in Criminal Accountability Appeal No.13 and M.A. No.10218 of 2011).

Noor Muhammad, Senior Special Prosecutor, NAB for Respondent (in Criminal Accountability Appeal No.13 and M.A. No.10218 of 2011).

Date of hearing: 9th August, 2012.

2014 P Cr. L J 349

[Sindh]

Before Farooq Ali Channa and Naimatullah Phulpoto, JJ

JAFFAR KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-59 of 2009, decided on 12th December, 2012.

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

----S. 9(c)---Possession and transportation of narcotic ---Appreciation of evidence---Sentence, reduction in---Taking of samples for chemical examination---Scope---Narcotic contained in different packets---Separate samples from each packet not taken---Effect---Accused persons were allegedly transporting packets containing 180 kilograms of charas, which were hidden in the secret cavities of a truck---Only two packets weighing 2 kilograms in total were sealed and sent to Chemical Examiner---Trial Court convicted accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment with a fine of Rs. 100,000 each---Validity---Police allegedly recovered 90 packets of charas which weighed 180 kilograms in total---Only two packets weighing one kilogram each were sealed separately and sent to Chemical Examiner---Report of Chemical Examiner also showed that Laboratory received only two sealed parcels containing two kilograms charas, as such the accused persons would be considered to have been found in possession/transportation of two kilograms charas as no chemical examiner's report was available in respect of the rest of the recovered substance---Appeal was allowed partly, conviction of accused persons was maintained, but their sentence was reduced from life imprisonment to six years imprisonment with a fine of Rs. 100,000 each.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

Faiz Muhammad Larik for Appellants.

Abdul Rasheed Soomro, State Counsel.

Date of hearing: 12th December, 2012.

2014 P Cr. L J 361

[Sindh]

Before Faisal Arab and Aqeel Ahmed Abbasi, JJ

ASGHAR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.59 and 60 of 2009 and Confirmation Case No.1 of 2009, decided on 19th January, 2012.

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

----S. 302--- Qatl-e-amd--- Appreciation of evidence---Sentence, reduction in---Grave and sudden provocation---Accused was an uneducated young boy of humble background, who was confronted with a situation, wherein his sister was being teased by deceased---No evidence was produced by prosecution before Trial Court, which could suggest that either there was any previous enmity between accused and deceased or there was any premeditation on the part of accused or preparation to commit murder of deceased, except a sudden provocation, which was on account of teasing and annoyance of his sister by deceased---High Court maintained conviction but altered death sentence into imprisonment for life.

Sikandar v. State PLD 1963 SC 17; Wazir Muhammad v. The State 1992 SCMR 1134; Wali Muhammad v. Nawab and others 1984 SCMR 914; Furqan Hyder alias Taj v. The State 1984 PCr.LJ 1129 and Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633 ref.

Asghar Ali v. The State 1999 MLD 562 and Muhammad Iqbal v. The State 1998 PCr.LJ 1862 rel.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---Accused was not named in F.I.R.---Contradiction in evidence---Benefit of doubt---Ocular evidence of complainant, his brother and nephew besides being contradictory was not confidence inspiring---Complainant during cross-examination could not explain contradiction in F.I.R. and in his deposition regarding presence of accused along with co-accused at the place of alleged incident---Complainant had merely stated that on account of confusion, he could not mention name of accused and his role in alleged crime, while recording F.I.R.---No incriminating material against accused, which could corroborate ocular evidence in that regard, was produced by prosecution---Trial Court failed to record any finding with regard to common intention or connivance of accused with co-accused---Neither any recovery of weapon or empties were effected from the possession of accused, nor any direct evidence or incriminating material was produced---Prosecution could not establish charges against accused beyond reasonable doubt---Trial Court was not justified to award conviction and sentence to accused, whereas accused was entitled to benefit of doubt---High Court while extending benefit of doubt set aside conviction and sentence awarded by Trial Court and acquitted accused of the charge---Appeal was allowed in circumstances.

Muhammad Aslam v. Muhammad Shafique and 3 others 2005 SCMR 1507 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

Nadeem Khalid and Ali Jafar for Appellants (in both appeals).

Ms. Rehana Akhtar, Additional Prosecutor-General Sindh for the State (in both appeals).

Muhammad Tariq Ahmed for the Complainant.

Date of hearing: 19th January, 2012.

2014 P Cr. L J 399

[Sindh]

Before Nadeem Akhtar and Syed Muhammad Farooq Shah, JJ

KAMRAN RAZA---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Constitutional Petition No.D-3254 of 2013, decided on 30th October, 2013.

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

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List---Cost, imposition of---Acquittal from criminal case---Grievance of petitioner was that despite his acquittal from criminal case, authorities had placed his name on Exit Control List---Validity---Name of petitioner was placed by authorities in arbitrary and mechanical manner without applying their own mind---Despite repeated directions and orders of High Court nothing had been placed on record by authorities to substantiate that there existed any valid or justiciable ground for placing name of petitioner on Exit Control List or for prohibiting him from travelling abroad---If petitioner as, in the present case, was involved in offence of connivance/abetement and wrongful loss to bank and corresponding wrongful gain to him, in the said case petitioner had already been acquitted under S.249-A, Cr.P.C.---Complainant bank did not file appeal against acquittal of petitioner, hence acquittal order had attained finality---High Court directed the authorities to remove name of petitioner from Exit Control List forthwith---High Court further directed the official concerned to pay a sum of Rs.50,000 as compensation from his own account to petitioner for illegally and wrongfully placing his name on Exit Control List---Petition was allowed accordingly.

Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior and 2 others PLD 2009 Kar. 243; Mir Khalid Langov v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 2007 Quetta 41; Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Rafi Ahmed and another v. Special Judge, Central, Lahore and another PLD 2010 Lah. 693 and Mian Ayaz Anwar v. Federation of Pakistan PLD 2010 Lah. 230 ref.

Constitutional Petition No.D-1782 of 2013 (Farhan Saeed v. Federation of Pakistan and others) and Constitutional Petition No.D-3608 of 2013 (Wasatullah Jaffery v. Federation of Pakistan and others) rel.

Malik Altaf Javed for Petitioner.

Ashfaq Rafiq Janjua, Standing Counsel for Respondents.

Date of hearing: 9th October, 2013.

2014 P Cr. L J 427

[Sindh]

Before Abdul Rasool Memon, J

SHAHID ALI LAGHARI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1289 of 2012, decided on 1st February, 2013.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c) ---Possession of narcotic---Bail, grant of---Borderline case---Police allegedly apprehended the accused and found him in possession of 1150 grams of charas---No material was placed on record by the prosecution to substantiate the allegation that accused was previously convicted or was a hardened, desperate and dangerous criminal---Investigation of the case was complete---Prosecution witnesses were police officials, therefore, there was no apprehension of tampering with the evidence---Recovery of 1150 grams of narcotic was a borderline case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997, benefit of which could be extended to accused---Accused was admitted to bail accordingly.

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

----S. 497---Bail---Scope---Habitual offender---Proof---Registration of (other) criminal cases against an accused---Effect---Mere registration of (other) criminal cases against a person was no proof of his being a habitual offender, unless he was found guilty after trial.

Raja Nasir Hussain v. The State 1999 YLR 1356 rel.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Possession of narcotic---Borderline case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997, benefit of---Scope---Benefit of such borderline case could be extended to accused even at bail stage.

Allah Dino Umrani v. The State 2012 YLR 2901 rel.

Ghulam Shabbir Babar for Applicant.

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

Date of hearing: 1st February, 2013.

2014 P Cr. L J 437

[Sindh]

Before Muhammad Shafi Siddiqui, J

KHALID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-398 of 2011, decided on 21st March, 2013.

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

----S. 497(1), first proviso---Bail, grant of---Statutory delay, principle of---Applicability---Scope---In order to qualify to file bail application under first proviso to S.497(1), Cr.P.C., it is to be shown that accused has been detained for such offence for continuous period exceeding two years and once he qualifies such period, he has to further prove that "delay in trial" was not caused by any of his act or omission.

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

----S. 497(1), first & third proviso---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Statutory delay---Mechanical inclusion and exclusion of days---Scope---Accused contended that he had been in continuous detention for more than two years, without conclusion of trial---Validity---One adjournment by accused whether necessary or un-necessary deliberate or non-deliberate might frustrate further dates of hearing as it took hectic efforts to accumulate and motivate all prosecution witnesses, complainant etc. for trial / evidence and one such desire of adjournment on the part of accused might unsettle mind of prosecution witnesses for the next few dates at least if not more and the same did not work on mechanical inclusion and exclusion of the days---Mathematical calculation of excluding adjournments sought by accused or considering dates when presiding officer was on leave would not serve the purpose as one adjournment application on the day when trial could have begun, if granted on account of incapacity of accused to proceed, the whole process would be frustrated and it would again depend on hectic efforts to fix a date and time suitable for witnesses who out of their busy schedule might not get time for next date or so---Accused could not succeed in third proviso regarding delay in trial---Accused failed to make out a case for grant of bail on statutory ground---Bail was refused in circumstances.

Arbab v. State 2006 MLD 1846; Abdul Waheed v. State 2005 MLD 802; Mahar Ali Shahi v. State 2008 PCr.LJ 449; Mashooque v. State 2001 PCr.LJ 874; Abdul Hameed v. State 2003 MLD 19; Taj Muhammad v. State 2011 PCr.LJ 1910; Muhammad Yousif v. State 2000 SCMR 79; Sher Zaman v. Muhammad Azad 1978 SCMR 248; Abdullah v. State 1985 SCMR 1509; Muhammad Iqbal v. State 1992 MLD 287; Faisal v. State PLD 2007 Karachi 544; Sahib Khatoon v. Bakhsal 2001 MLD 229; Abdur Rashid v. State 1998 SCMR 897; Muhammad Sadik v. State 1980 SCMR 203 and Moundar v. State PLD 1990 SC 934 ref.

Ghulam Dastagir Shahani for Applicant.

Safdar Ali G. Bhutto for the Complainant.

Abdul Rasheed Soomro, State counsel.

2014 P Cr. L J 460

[Sindh]

Before Shahnawaz Tariq, J

FARZANA---Applicant

Versus

S.H.O. POLICE STATION KHAMBHRA---Respondent

Criminal Miscellaneous Application No.511 of 2013, decided on 11th November, 2013.

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

----S. 376---Criminal Procedure Code (V of 1898), Ss. 22-A, 22-B & 561-A---Rape---F.I.R., non-registering of---Ex-Officio Justice of Peace---Reliance upon report of police---Scope---Petitioner alleged to have been raped by proposed accused but ex-Officio Justice of Peace relying upon report of police declined to issue direction for registration of case---Validity---Under the scheme of criminal administration of justice, Justice of Peace was not bound to depend upon and confine his authority to the extent of report furnished by concerned police---Prime duty of Justice of Peace was to apply his judicial mind to examine all relevant facts and prevailing circumstances narrated in complaint by aggrieved person independently and judiciously---Justice of Peace was not to be convinced by report submitted by police---Legal assignment for Justice of Peace was to focus upon prime question of controversy that whether or not any cognizable offence, prima facie, was made out from contents of complaint---Justice of Peace had committed serious error while passing order which was set aside---Application was allowed accordingly.

Mst. Sahib Khatoon v. SHO, Police Station Garhi Khairo and 2 others 2013 PCr.LJ 749; Ghulam Fared v. SHO Police Station Sangi and another 2013 PCr.LJ 117; Muhammad Hanif v. SHO, Police Station N. Feroze and another 2013 PCr.LJ 449 and Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

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

----Ss.154 & 155---Registration of criminal case---Principle---Station House Officer, under the provisions of Ss.154 & 155, Cr.P.C., could not deprive aggrieved person by considering version of proposed accused to be more trustworthy than initial complaint of victim and concluding entire high handedness of aggressor being innocent without lodging F.I.R., recording of statements of witnesses of incident and conducting thorough investigations of alleged offence within the prescribed parameters of investigation in accordance with law.

Noor Ahmed Chadhar for Applicant.

Muhammad Sadiq Malik for proposed accused.

Zulfiqar Ali Jatoi, D.P.-G.

2014 P Cr. L J 473

[Sindh]

Before Salahuddin Panhwar, J

INAYAT SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-749 of 2012, decided on 24th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 114, 147, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, abettor present when offence was committed and rioting---Bail, refusal of---Allegations against the accused were that he along with co-accused committed murder of brother of the complainant and her mother was also injured during the incident---Accused along with co-accused having armed themselves with lethal weapons, intruded in the house of complainant and one man lost his life---No doubt, accused was not alleged to have caused any fire arm injury to the deceased but he was specifically alleged to have caused pistol shot injury to the prosecution witness aged about 70 years, who had stepped forward to save life of his son---Injury attributed to accused was on the chest of prosecution witness which could not be said to be a non-vital part of the body---Injury fell within prohibitory clause of subsection (1) of S.497, Cr.P.C.--- Statements of prosecution witnesses and medical evidence connected the accused with commission of offence with which he had been charged---Minor contradictions in prosecution case or question of vicarious liability could not be considered at bail stage---Deeper appreciation of evidence and material available on record was not permissible at bail stage---Prima facie reasonable grounds were in existence against the accused that he had committed offence falling within prohibitory clause of subsection (1) of S.497, Cr.P.C.---Accused was not entitled to bail---Bail was refused accordingly.

PLD 1995 SC 34; 2009 YLR 2300 and PLD 1972 SC 277 distinguished.

Abdul Qadir Shaikh for Applicant.

Abdul Rehman Kolachi, APG for Respondent.

Shamsuddin Kobhar for the Complainant.

Date of hearing: 24th December, 2012.

2014 P Cr. L J 482

[Sindh]

Before Shahnawaz Tariq, J

SHAH NAWAZ alias SHANOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-455 of 2013, decided on 8th November, 2013.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25--- Possession of narcotic---Bail, grant of---Further inquiry---Narcotic cases---Animosity with police, relevance of---Accused was allegedly found in possession of 2220 grams of charas---Plea of accused that he was booked in the present case due to enmity with police since a relative of his had filed an application against concerned Station House Officer (SHO) and his subordinate staff under Ss. 22-A & 22-B, Cr.P.C.---Validity----Relative of accused had moved an application for registration of F.I.R. against concerned Station House Officer (SHO) and his subordinate staff, and in retaliation four F.I.Rs. were lodged against the accused and his close relatives--- Factum of animosity pleaded by a party with cogent and confidence inspiring evidence, must be taken into prime consideration by the court even if produced at bail stage, irrespective of the heinousness of the offence or recovery of considerable quantity of narcotic---Factum of animosity of police with the accused could not be rule out in the present case, which made the case one of further inquiry---Accused was released on bail accordingly.

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

----S. 497---Bail application---Sensitivity/heinousness of the offence---Scope---Court should not be influenced from the sensitivity of alleged offence while considering the versions of prosecution and defence in juxtaposition.

Amanullah G. Malik for Applicant.

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

Date of hearing: 8th November, 2013.

2014 P Cr. L J 490

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

RASHEED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-11 of 2012, decided on 9th October, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Evidence of Police Officer, who was prosecution witness, and that of Mashir of the arrest and recovery, had supported the prosecution case on each and every material particular of the case---Evidence of said witnesses further got corroboration by Mashirnama, F.I.R. as well as positive chemical report available on record---Prosecution witnesses were subjected to cross-examination, but their evidence remained un-shattered---Nothing had been brought on record by accused to show any ill-will of prosecution witnesses against him---Few minor contradictions in the statements of the prosecution witnesses, which were inconsequential in nature, were not enough to shatter the prosecution case---Evidence of Police Officials, were to be considered as of other witnesses within the probability of truth and belief in accordance with law, when nothing had been brought on record to show that Police witnesses had any ill-will or grudge against accused---Section 103, Cr.P.C. was not applicable to the proceedings under the provisions of Control of Narcotic Substances Act, 1997---Sample parcel though was dispatched for testing purpose after lapse of more than two months, but said delay, was not helpful to the accused, as evidence of witnesses of recovery of charas inspired confidence---In absence of any proof of tampering with the material, delay in sending samples to laboratory for chemical analysis was of no avail to accused---Sufficient material being available before the Trial Court in shape of unimpeachable ocular evidence coupled with Mashirnama of arrest and positive report of Chemical Examiner for establishing the guilt of accused for the alleged charge, Trial Court had rightly convicted accused---In absence of any infirmity or illegality in the impugned judgment of the Trial Court calling for interference, High Court maintained said judgment with modification that as the alleged recovery was 1500 grams charas which was below 2 Kilograms, sentence provided against said recovery which was five years and fine of Rs.20,000, was modified and reduced to four years and six months' R.I. in circumstances.

1999 PCr.LJ 1728; 1999 P.Cr.LJ 812 and Ghulam Murtaza v. The State PLD 2009 Lah. 362 rel.

Appellant produced in custody.

Muhammad Bux Qazi, State counsel.

Date of hearing: 2nd October, 2013.

2014 P Cr. L J 498

[Sindh]

Before Abdul Maalik Gaddi, J

HUBDAR ALI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-43 of 2013, decided on 8th October, 2013.

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

----S. 514---Forfeiture of bail bond for failure to appear in the court and issuance of non-bailable warrants---Petitioner who was on bail, having failed to appear in the court on one day, his bail bond was forfeited and non-bailable warrants were issued to him---Application of accused for condonation of his absence was not accepted by the Trial Court---Accused who was a clerk by profession, had been attending the court regularly, but on the relevant date he could not appear as he was suffering from "Diarrhea"; he sent an application to the Trial Court for condonation of his absence, which was supported by the medical certificate, but same was not accepted by the Trial Court---Validity---Impugned order passed by the Trial Court was harsh, as in the peculiar facts and circumstances, it appeared to be a fit case calling interference of High Court---Grounds as submitted by the applicant for non-attending the court on the relevant date were sufficient for the Trial Court to condone the absence of the applicant for one day, but the Trial Court did not exercise its judicial discretion in favour of the applicant---Impugned order was set aside and absence of the applicant was condoned.

Abdullah v. The State 1998 Cr.LJ 328 rel.

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

----Ss. 435 & 439---Revisional jurisdiction---Revisional jurisdiction of High Court was very wide---Where the order of the Trial Court was found absolutely harsh, based on misconception of law and facts, and quite contrary to the principles laid down for the dispensation of criminal justice, revisional jurisdiction was to be exercised to correct or to prevent gross miscarriage of justice.

Irfan Badar Abbasi for Applicant.

Ali Raza Pathan, State counsel.

2014 P Cr. L J 504

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD AMIN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-105 of 2004, decided on 31st May, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Qatl-e-amd---Appreciation of evidence---Prosecution case---Onus to prove---Accused was convicted by Trial Court for committing murder of 7 years old young girl and was sentenced to imprisonment for life---Allegations by prosecution to the effect that accused had taken deceased with him on the date, time and at the place of incident; he alone was present with her when incident happened; and he was found with her by eyewitnesses, not only remained un-rebutted but such facts/allegations also stood admitted before Trial Court---Burden to prove such facts/allegations was on prosecution and the same stood proved---No contradiction was noticed in evidence of complainant and other eyewitnesses, as all of them testified that when they reached at the place of incident after hearing cries of deceased girl, they had found accused sitting on the chest of deceased with both his hands around her neck and he was strangulating her---More than sufficient and unchallenged ocular and medical evidence existed against accused before Trial Court to convict him for murder of minor girl and case against him was proved beyond any shadow of doubt---Findings of Trial Court were based on sound reasoning and correct and proper appreciation of evidence on record---High Court declined to interfere in judgment passed by Trial Court as the Court had already taken a lenient view by not awarding sentence of death to accused---Appeal was dismissed in circumstances.

Shahzad Tanveer v. The State 2012 SCMR 172; Gul Muhammad v. The State 1972 SCMR 435; Ghulam Mohi-ud-Din v. The State 1993 PCr.LJ 1849; Ghulam Nabi and 2 others v. The State 2009 MLD 49; Muhammad Ramzan and another v. The State 2009 PCr.LJ 553; Omer v. The State 2009 PCr.LJ 1119; Muhammad Aslam v. The State 2008 YLR 1608; Allah Ditta v. The State 2006 PCr.LJ 84; Muhammad Pervaiz v. The State 2006 PCr.LJ 221; Sobho and 2 others v. The State PLD 2004 Kar. 8; Jamshed alias Jammi v. The State and others 2004 PCr.LJ 1239; Arfan Ali v. The State 2003 YLR 1054; Abdul Sattar and others v. The State 2002 PCr.LJ 51 and Pir Jan and another v. The State 1997 PCr.LJ 1646 distinguished.

Nazir Ahmed v. The State 2009 SCMR 523; Shafqat Ali and others v. The State PLD 2005 SC 288 and Sher Dil and others v. The State and others 2003 YLR 110 ref.

Muhammad Hanif v. The State PLD 1993 SC 895 and Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

Ms. Nasira Shaikh for Appellant.

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

Dates of hearing: 30th and 31st January of 2013.

2014 P Cr. L J 527

[Sindh]

Before Salahuddin Panhwar, J

NAWAB LIAQUAT ALI and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No.S-138 of 2013, decided on 25th October, 2013.

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

----Ss. 221, 222 & 223---Framing of charge---Purpose and scope of---Charge being the foundation of the trial, legislature had provided an elaborate procedure for framing of the charge---Rationale was that accused should know the exact nature of accusation made against him, so that he could give a proper reply and should not, at later stage, come with a plea of being misled, or prejudiced in his defence---Courts, in circumstances should always adhere to the procedure, so provided for framing of the charge.

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

----Ss. 227, 228 & 229---Alteration and addition in 'charge'---Proceedings after alteration or addition---Scope---Alteration or addition could come into play only when the court, in its opinion, would find such alteration or addition to be not likely to cause prejudice to accused or the prosecutor---Amended or altered charge would be taken as original (so as to give a legal cover to witnesses already examined)---Once the court, in its opinion would come to a conclusion that such addition or alternation, in its opinion, was likely to cause prejudice, then court could competently direct even a de novo trial---Legislature had insisted that there should not be a likelihood of a prejudice to accused or the prosecutor for no other reason, but to ensure a fair trial and justice within their true meanings.

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

----Ss. 227, 228, 229, 231 & 265-F---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Charge---Alteration and addition in charge---Application for recalling prosecution witnesses for further cross-examination, and calling Civil Surgeon---Altered charge was framed on application of complainant and accused persons, moved an application under S.231, Cr.P.C. with a request to recall prosecution witnesses who were already examined for further cross-examination; with further prayer to summon Civil Surgeon to produce the record of Medical Board---Such application of accused persons was dismissed---Validity---Held, since in the amended charge not only the sections of law had been added, but there had come an allegation of causing injuries to one person, who was not named in the earlier charge---Even, if the court did not resort to the provisions of Ss.228, 229, Cr.P.C., yet Trial Court was not justified in declining the request of the defence to recall and re-examine the two already examined witnesses; which re-examination would be with reference to such alteration/addition---As regards the request of accused to summon Civil Surgeon, defence would have full opportunity for such a request within the meaning of S.265-F, Cr.P.C. at the conclusion of prosecution case---When the court did not resort to the earlier provisions of Ss.228, 229, Cr.P.C., accused and prosecutor, be allowed an opportunity to move an application for summoning, re-examining witnesses, who already stood examined, so that accused or prosecutor could not come with plea of having not been given an opportunity of fair trial, because in Ss.228 and 229 whole discretion lay with the court---Chapter XIX, Cr.P.C. (of the charge) had cast a mandatory obligation to strictly adhere to the requirements and procedure, so explained in that Chapter---Trial Court had failed to exercise the jurisdiction vested in it by S.231, Cr.P.C., by which Trial Court was required to have allowed the request of the defence to re-summon and re-examine the already examined witness---Petition was partly allowed to the extent of re-examination and re-summoning of prosecution witnesses, already examined---Such re-examination must be for limited purpose with reference to alteration or addition in the amended/altered charge only.

Muhammad Bakhsh v. The State 1969 PCr.LJ 1901 and 2006 SCMR 56 rel.

Hidayatullah A. Abbasi for Applicants.

Sajjad Chandio for the Complainant.

Shahid Ahmed Sheikh, A.P.-G. Singh for the State.

Date of hearing: 25th October, 2013.

2014 P Cr. L J 542

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

SADAM---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.D-10 and M.A. No.752 of 2013, decided on 5th September, 2013.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), Ss.4(4), 5 & 7---Possessing and trafficking of narcotic---Declaring accused as Juvenile, and ordering separate trial---Accused had claimed that he being juvenile, his trial should be conducted under Juvenile Justice System Ordinance, 2000---Medical Board had given opinion that age of accused was about 20 years---Alleged incident took place 1 year, 5 months and 21 days prior to the date of medical examination---Age of accused on the date, the alleged offence took place, was about 18 years, 6 months and 9 days---Accused in circumstances, was aged about 18 to 19 years at the time of occurrence---Provisions of Juvenile Justice System Ordinance, 2000, were to be interpreted liberally; and when two views were possible, one favouring accused had to be taken, particularly qua the juvenility, inasmuch as it could be proved to be helpful for rehabilitation of accused on account of aid of Juvenile Justice System Ordinance, 2000---Accused was entitled to the benefit of the Ordinance and was declared as juvenile; and his trial was ordered to be separated from the case of co-accused and could be sent to the Juvenile Court.

Afsar Zamin's case PLD 2002 Kar. 18; Shamaal Khan Shah v. The State 2012 PCr.LJ 897; Yousaf v. The State 1975 PCr.LJ 936 and Abaidullah v. Sessions Judge, Jhang and others 2004 PCr.LJ 1881 rel.

Abdul Baqi Jan Kakar for Applicant.

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

Date of hearing: 5th September, 2013.

2014 P Cr. L J 579

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

BAHADUR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-139 of 2010, decided on 9th October, 2013.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Kidnapping for receiving ransom amount, rioting, act of terrorism---Appreciation of evidence---Incident of kidnapping of baby aged about 4/5 years, had taken place in presence of her father and prosecution witnesses---Report was made by the complainant to the Police without any loss of time, and the complainant had fully supported the contents of F.I.R.---Accused was apprehended after encounter between Police and accused in presence of Police Officials, and baby was got recovered from possession of accused---All witnesses were subjected to cross-examination, but nothing had come on record to discredit their evidence---Witnesses were natural and independent, who had no enmity with accused---Merely claiming enmity with the complainant over a house, without bringing any evidence on record in proof of such claim, was not sufficient to believe the plea of accused with regard to plea of enmity with the complainant---Non-examination of one eye-witness, was not fatal to prosecution case, as the prosecution was not required to examine each and every witness in the case---Quality and not the quantity of the evidence would decide the fate of criminal case---Confidence-inspiring ocular testimony of prosecution witnesses was also corroborated by the fact that accused was caught hold at the spot along with pistol and kidnapped baby---In absence of any error or illegality in the impugned judgment warranting interference by High Court, same was maintained and appeal was dismissed, in circumstances.

2008 SCMR 917 and Muhammad Amjad v. State PLD 2003 SC 704 rel.

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

----Ss. 103 & 173--- Search proceedings---Police Officials were as good witnesses as any other citizen, unless any mala fide was established against them--- Deposition of Police Officials could not be brushed aside simply on bald allegation that they belonged to Police department---Requirement of S.103, Cr.P.C., was not included in the sense that failure to comply it would make the search illegal.

2004 MLD 200 rel.

Faiz Muhammad M. Larik and Habibullah G. Ghouri for Appellant.

Abdul Rasheed Soomro for the State.

Date of hearing: 2nd October, 2013.

2014 P Cr. L J 611

[Sindh]

Before Salahuddin Panhwar, J

QAZI alias DOST MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-6 of 2010, decided on 1st August, 2013.

(a) Criminal trial---

----Witness---Injured witness---Credibility---Principle---Credibility of witness which matters and not mere injuries on his person to give him status of truthful witness.

Muhammad Pervez and others v. The State 2007 SCMR 670 rel.

(b) Criminal trial---

----Witness--- Conflicting statement--- Effect--- Witness making conflicting statement is not a witness of truth---One who is held to be telling lie may not be believed to be speaking truth when his such statement is in a single breath unless otherwise proves else as the same may take away the golden rule of benefit of doubt on which safe criminal administration of justice rests.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence---Benefit of doubt---Medical and ocular account, contradiction in---Injuries and weapon---Proof---Six accused faced trial, out of them four were acquitted by Trial Court but two were convicted and sentenced to imprisonment for life---Validity---Ocular account was not supported with other corroborative pieces of evidence---Medical evidence entirely cut the ocular account at its root because allegation was that of use of sharp side of hatchet but medical evidence belied it by holding that injuries on the person of deceased were all caused by hard and blunt substance---Number of injuries claimed through ocular account on the person of deceased were also not corroborated with medical and even inquest report---Guilt or innocence was not determinable through medical evidence but medical evidence had to be given its due weight when prosecution had come forward with a claim of injuries to be from specific weapon (identity whereof was not typical one), seat and place of causing injuries because it was the medical evidence alone which could corroborate such aspect of ocular account---Prosecution failed to bring home guilt against accused persons beyond shadow of reasonable doubt---High Court declined to uphold conviction recorded by Trial Court and acquitted accused persons of the charge---Appeal was allowed in circumstances.

Muhammad Pervez and others v. The State 2007 SCMR 670; Muhammad Ishaque v. The State 2007 SCMR 108; Allah Bachaya v. State PLD 2008 SC 349 and Arif Hussain and another v. The State 1983 SCMR 428 rel.

Irshad Ali R. Chandio for Appellants.

Abdul Rasheed for the State.

Date of hearing: 1st August, 2013.

2014 P Cr. L J 630

[Sindh]

Before Sadiq Hussain Bhatti, J

SHAHZADI SONIA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-897 of 2012, decided on 3rd May, 2013.

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

----S. 497(1)---Female accused---Right of bail---Scope---Woman was not entitled to grant of bail as a right in every case---Courts generally take lenient view while dealing with the bail applications of women and exercise discretion in their favour in suitable cases---Such discretion, however, was to be exercised keeping in view the facts and circumstances of the case---While deciding such matters, the court should be vigilant and should carefully and minutely examine the facts and circumstances of the case and by no means take a lenient view.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 114, 34 & 506(2)---Qatl-e-amd, attempt to commit qatl-e-amd, abettor present when offence is committed, common intention, criminal intimidation---Bail, refusal of---Female accused involved in a pre-planned murder---Allegation against female-accused was that she instigated the co-accused to fire upon the deceased and injured witness---Accused was a nurse at a hospital and complained that the deceased-doctor was strict with her---Accused and co-accused allegedly threatened the deceased-doctor with consequences if he did not stop being strict with the accused---Evidence revealed that accused along with co-accused persons waylaid the deceased---Accused pointed towards the co-accused persons and told them to kill the deceased and not to spare him---Co-accused fired multiple shots at the deceased and witness also received injuries--- Post-mortem report of deceased revealed 11 injuries from close range with blackening---Apparently present case was a case of pre-planned cold-blooded murder---Accused had a role in the murder of deceased---Prosecution witnesses had involved the accused as being present at the place of occurrence---Evidence of injured witness could not be brushed aside at bail stage of the case---Prima facie there was no inconsistency between ocular and medical evidence---Delay in lodging F.I.R. had been explained in the F.I.R.---Reasonable grounds existed for believing the involvement of accused in the present case, which provided punishment of death or imprisonment for life---Bail application was dismissed accordingly.

2004 YLR 2434; 2005 YLR 190; 2012 YLR 1066; 2010 PCr.LJ 280 and PLD 1996 SC 241 distinguished.

(c) Criminal trial---

----Conviction---Evidence of single truthful witness---Such evidence was sufficient to warrant conviction.

Ayaz Ali Gopang for Applicant.

Syed Muhammad Waseem Shah for the Complainant.

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

Date of hearing: 30th April, 2013.

2014 P Cr. L J 641

[Sindh]

Before Abdul Rasool Memon, J

SALMAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.317 of 2013, decided on 6th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376, 365-B & 34---Rape and kidnapping, abducting or inducing woman to compel for marriage etc---Bail, refusal of---Allegations against the accused were that he along with co-accused abducted the daughter of complainant and committed rape with her---Accused had been alleged the act of commission of Zina-bil-Jabr with victim aged about 14 years along with co-accused---Name of accused did not appear in F.I.R. but during identification parade before the Magistrate he was identified by the victim who assigned him specific role of committing Zina-bil-Jabr---Victim had implicated the accused with commission of offence in her statement recorded under S.164, Cr.P.C.---Deeper appreciation of the evidence was precluded at bail stage---Tentative assessment of evidence available on record showed that case of accused did not call for further inquiry---Bail was refused accordingly.

Nazar Muhammad v. The State and another PLD 1978 SC 236 and Safdar Abbas and 2 others v. The State PLD 1987 SC 467 rel.

Munir Ahmad v. The State 1995 PCr.LJ 1745; Azhar Shafiq alias Billu and 2 others v. State 2004 YLR 3352; Ikhtiar Gul and 2 others v. The State 1996 SCMR 1130 and Naseebullah and others v. The State SBLR 2011 FSC 17 distinguished.

Muhammad Majid for Applicant.

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

Date of hearing: 22nd April, 2013.

2014 P Cr. L J 650

[Sindh]

Before Zafar Ahmed Rajput, J

ALTAF HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.487 of 2013, decided on 11th September, 2013.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.302, 201, 120-B & 34---Qatl-e-amd, causing disappearance of evidence of offence, or giving false intention to screen offender, criminal conspiracy, common intention---Pre-arrest bail, refusal of---Deceased, who was mother of three infants, was murdered in the house of her father, where accused/her brother also resided, and killed her on the notion of "KARI"---Specific role of causing death of the deceased had been ascribed to accused---Police had recorded the statements of mother of accused and deceased, and another one under S.161, Cr.P.C., both had nominated the accused in commission of offence---Perusal of post-mortem report revealed that, the deceased died due to haemorrhage, and shock as a result of fire-arm injuries---Ocular as well as medical and circumstantial evidence available on the record, connected the accused in the commission of crime---Accused, in circumstances was not entitled to pre-arrest bail---Bail application stood dismissed, in circumstances.

Nazeer Ahmed v. The State PLD 1997 SC 347 ref.

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

----Ss. 498 & 498-A---Pre-arrest bail, grant of---Principles---Pre-arrest bail was an extraordinary relief to be granted only in extraordinary situation to protect innocent persons against victimization, through abuse of law---Principles governing the grant of pre-arrest bail were that accused had to show that he had been implicated in the case falsely; and his arrest was tainted with mala fide and ulterior motive, such as humiliation and harassment at the hands of Police, with intention to cause irreparable injury to the reputation and liberty of a person.

Manzoor Hussain Ansari for Applicant.

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

2014 P Cr. L J 655

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD RAZZAK---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1245 of 2012, decided on 3rd January, 2013.

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

----Ss. 497(1), third proviso & 345---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention---Bail, grant of---Statutory delay in conclusion of trial--- Legal heirs of deceased compounding the offence---Effect---Accused allegedly killed complainant's wife by strangulation---Period of more than two and a half years had passed since arrest of accused---Contention of accused was that his trial had not commenced for the last more than two years; that not a single witness had been examined by the prosecution; that delay in conclusion trial was not attributable to accused, and that legal heirs of deceased, i.e. husband and son of deceased had filed affidavits to the effect that they would have no objection if accused was granted bail---Validity---Prosecution admitted that trial had not commenced since last more than two years, and that two legal heirs of deceased had patched up and compounded the offence with the accused---Accused was admitted to bail in circumstances.

Shabeer v. The State 2012 SCMR 354; Zahid Hussain Shah v. The State PLD 1995 SC 49; Danish Ahmed v. The State 2012 MLD 1180; Ziauddin v. The State PLD 2012 Sindh 147 and Muhammad Ibrahim v. the State 2012 MLD 1318 rel.

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

----S. 497(1), third proviso---Bail sought on ground of statutory delay in conclusion of trial---"Conclusion of trial"---Scope---Trial would be deemed to be concluded only when the statements of all the prosecution witnesses had been recorded---When statement of (even) one of the prosecution witnesses was yet to be recorded, it could not be said that trial had been concluded.

Ziauddin v. The State PLD 2012 Sindh 147 and Muhammad Ibrahim v. the State 2012 MLD 1318 rel.

Muhammad Akhtar Shad for Applicant.

Imtiaz Ali Jalbani, Assistant Prosecutor-General, Sindh for the State.

Legal heirs Shujaur Rehman and Rizwanur Rehman, the husband and son of the deceased respectively are present in person.

Date of hearing: 3rd January, 2013.

2014 P Cr. L J 662

[Sindh]

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

GUL ZAMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.333 of 2011, decided on 29th November, 2013.

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

----Ss.9 (c) & 25---Criminal Procedure Code (V of 1898), S.103---Recovery of narcotic substances---Appreciation of evidence---Police witnesses---Non-associating public witnesses---Charas weighing 62.830 kilograms was recovered from both the accused---Trial Court convicted both the accused and sentenced them to imprisonment for life---Plea raised by accused was that evidence of police witnesses was not acceptable and no person from public was made recovery witness---Validity---Mere fact that witnesses belonged to police was no ground to discard their evidence---Police witnesses were as good and respectable witnesses as other public witnesses and their statement could not be discarded for the reason that they were police employees---By virtue of S.25 of Control of Narcotic Substances Act, 1997, non-citing of public witnesses was not fatal to prosecution case as S.103, Cr.P.C. had been excluded from its application in cases of narcotics---Prosecution succeeded to prove its case for recovery of Chars and conclusion drawn and reasons given by Trial Court showed fair evaluation of evidence---High Court did not find any illegality or infirmity in judgment warranting interference--- Appeal was dismissed in circumstances.

Muhammad Paryal v. The State 2001 PCr.LJ 1475; Saifur Rehman and another v. The State 2011 PCr.LJ 1334; Mst. Zubaida Sadaruddin v. The State PLD 2006 Pesh. 128; Ghulam Qadir v. The State PLD 2006 SC 61; Nasrullah v. The State 2011 PCr.LJ 277 and Muhammad Younas and others v. Mst. Parveen alias Mano and others 2007 SCMR 393 ref.

Muhammad Khan v. The State 2008 SCMR 1616; Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 and Zulfiqar Ahmed v. The State 2006 SCMR 800 rel.

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

----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Recovery of narcotic substance---Delay in sending samples to Government Analyst---Effect---Provisions of Rr. 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, are directory and substantial compliance is sufficient---Even where there is no compliance at all, provisions of Control of Narcotic Substances Act, 1997, are not invalidated by such non-compliance, if the act otherwise is done in accordance with law.

Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 and Gul Alam v. The State through Advocate-General, N.-W.F.P. Peshawar 2011 SCMR 624 rel.

(c) Criminal trial---

----Defence plea---Effect---When accused at criminal trial takes specific plea, the onus invariably shifts and he is required to produce evidence to prove his plea or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

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

----S. 29--- Presumption--- Scope--- Presumption of possession of illicit articles is there unless person prosecuted rebuts such presumption.

Irfan Aziz for Appellants.

Ms. Akhtar Rehana, Additional Prosecutor-General for the State.

Date of hearing: 31st October, 2013.

2014 P Cr. L J 736

[Sindh]

Before Hassan Feroz, J

IRSHAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.197 of 2013, decided on 25th October, 2013.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302(b), 201 & 149---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information, rioting---Application for suspension of sentence during pendency of appeal against conviction---Accused persons who were nominated in the case, their presence could not be discarded in view of lodging of F.I.R. by them showing their presence in other criminal cases on the same date and at same Police Station---Lack of motive, could only be assessed at the time of hearing of appeal---Mere filing of affidavit of complainant and witness would not give benefit to application filed for suspension of sentence under S.426, Cr.P.C., as said application pertained to suspension of judgment, and judgment could only be suspended when there were cogent and reasonable grounds of innocence of accused persons showing gross miscarriage of justice; and any infirmity or irregularity in the judgment---Case of invoking provisions of S.426, Cr.P.C., pending appeal, having not been made out, sentence could not be suspended and application in that respect was rejected.

1978 SCMR 149; PLD 2001 Lah. 348; 2002 PCr.LJ 1573 and PLD 2010 SC(AJ&K) 29 rel.

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

----Ss. 426 & 497---"Suspension of sentence", and "grant of bail"---Distinction---Marked difference between "suspension of sentence" under S. 426, Cr.P.C., and "grant of bail" under S. 497, Cr.P.C.---According to the statutory intent of Cr.P.C.; as in the matter of bail, innocence of accused was the prime consideration viz.; that he was not guilty of offence falling under further inquiry; whereas under S.426, Cr.P.C. it was the judgment that would hold ground and underneath the judgment, there existed evidence, which could only be given cursory glance, and could not be deeply considered by picking holes in the judgment, as the suspension of sentence would not carry reappraisal of judgment, and such opinion was to be formed on the reasonable grounds to believe that accused was not guilty---Suspension of sentence could only be made on sound principles of justice as envisaged under S.426, Cr.P.C. as strong grounds were required for suspension of sentence which had not come out upon tentative assessment of judgment.

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

----S. 426--- Suspension of sentence--- After handing down of punishment, the innocence of accused turned into guilt and innocence would depart away---Deeper appreciation and reappraisal of evidence, could only be made during the course of hearing of appeal, rather it would be prejudging the appeal, and reappraisal of evidence at the stage of hearing of application under S.426, Cr.P.C.

Asif Ali Abdu Razaque Soomro for Appellants.

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

Date of hearing: 4th October, 2013.

2014 P Cr. L J 758

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

The STATE through Chairman, National Accountability Bureau---Appellant

Versus

FAZAL AHMED JAT and others---Respondents

Criminal Accountability Acquittal Appeals Nos.1, 2, 3, 5, 6, 8, 9, 11, 14, 15 of 2011 and 8 of 2012, decided on 7th January, 2013.

(a) Administration of justice---

----Statute which enables persons to take legal proceedings under certain specified circumstances, demands that those circumstances must be accurately obeyed.

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

----Ss. 8(a)(i), 8(d) & 32---Appeal---Maintainability---Acting Prosecutor General---Scope---Plea raised by accused was that appeal filed by NAB was not competently filed as Prosecutor-General was not holding office and acting law officer was not competent to file appeal---Validity---Chairman NAB could only authorize any other law officer of NAB to act as Prosecutor-General Accountability, when the latter was absent or unable to perform function of his office due to any reason whatsoever---Such powers could not be exercised by Chairman NAB for finding a substitute for Prosecutor-General Accountability during a period when office of Prosecutor-General was lying vacant---Power to appoint Prosecutor-General NAB under the provisions of S.8(a)(i) of National Accountability Ordinance, 1999, though exercisable on recommendation of Chairman NAB but solely vested with President of Pakistan---Allowing a person to act as Prosecutor-General NAB during a period when President of Pakistan had not appointed anyone to act as Prosecutor-General NAB would amount to usurpation of President's mandate---Chairman NAB had no lawful authority to authorize any other law officer of NAB to act as Prosecutor-General Accountability during a period when office of Prosecutor-General Accountability was laying vacant---Appeal filed by acting Prosecutor-General NAB during the period when office of Prosecutor-General Accountability was lying vacant, was incompetently filed--- Appeal was dismissed in circumstances.

Bank of Punjab v. Haris Steel Mill PLD 2010 SC 1109; Shahid Orakazi and another v. Pakistan through Secretary Law PLD 2011 SC 365; Criminal Petition No.383 of 2011; State through Chairman NAB v. Khalid Mahmood Criminal Miscellaneous Applications Nos.508 and 509 of 2011; Cantonment Board Khariyan Cantt. v. Muhammad Shafi PLD 1999 SC 400; Shujat Hussain v. Muhammad Habib 2003 SCMR 176; Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Lands 2005 SCMR 973 and Director Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129 ref.

Noor Muhammad Dayo, ADPG, NAB for Appellant.

Shaukat Hayat for Respondent (in Appeal No.1 of 2011).

Syed Mahmood Alam Rizvi for Respondent (in Appeal No.2 of 2011).

Abdul Hafeez Lakho for Respondent (in Appeal No.3 of 2011).

Mrs. Shazia Hanjrah for Respondent (in Appeal No.5 of 2011).

Abid S. Zuberi for Respondents (in Appeal No.6 of 2011).

Iqtedar Ali Hashmi for Respondents (in Appeal No.8 of 2011).

Nemo for Respondent (in Appeal No.9 of 2011).

Waqar Shah for Respondents (in Appeal No.11 of 2011).

Nemo for Respondent (in Appeal No.14 of 2011).

Rasheed A. Rizvi for Respondent (in Appeal No.15 of 2011).

Shaukat H. Zubedi for Respondent (in Appeal No.8 of 2012).

Dates of hearing: 20th and 27th November, 2012.

2014 P Cr. L J 783

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

ALI HAIDER and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.368 of 2012, decided on 12th March, 2013.

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

----S. 7(e)---Criminal Procedure Code (V of 1898), S. 342---Kidnapping for ransom---Appreciation of evidence---F.I.R., was registered after period of three months from alleged abduction, and no plausible explanation was available for said inordinate delay---Contradiction existed in the statement of the complainant with regard to payment of ransom amount---Complainant in his evidence had deposed that he had paid ransom amount of Rs.34,00,000 to accused persons, whereas he had narrated before the Police at the time of recording F.I.R. that he had paid Rs.5,00,000---No question was put to accused persons, whether they had released the alleged abductee after receipt of ransom amount from the complainant---Since the prosecution had collected the ransom amount, no specific question of said recovery was asked from accused persons in their statements under S.342, Cr.P.C.---Such was an illegality as the provision of S.342, Cr.P.C. was mandatory and non-compliance thereof amounted to illegality not curable under S.537, Cr.P.C.---No doubt deposition of accused remained unchallenged and accused were liable to be convicted, but abductee had given contradictory statement, which had made his deposition doubtful---Alleged abductee had stated that he had not identified one of the accused persons, his deposition was not free from doubt---Evidence of the abductee, was not inspiring-confidence, same did not help the prosecution, but it supported the stand taken by accused---Present case being not free from doubt, benefit of which had always to be given to accused---Prosecution case did not inspire confidence and conviction of accused was founded on tainted evidence, which could not be sustained in law---Allowing appeal, judgment of the Trial Court was set aside, accused was acquitted of the charge and was released, in circumstances.

Shahid alias Aamir and another v. The State 2011 YLR 2238; Pahlwan and others v. The State 2000 PCr.LJ 299; State v. Farman Hussain and others PLD 1995 SC 1 and Tarique Pervaiz v. The State 1995 SCMR 1345 ref.

Nazir Ahmed and others v. The State and others PLD 2005 Kar. 18 rel.

(b) Criminal trial---

----Appreciation of evidence--- Benefit of doubt--- While trying a criminal case, it was the duty of the court to appraise evidence strictly according to legal requirements of law without being influenced away emotionally for any other extraneous reason, which fell outside the pale of legal jurisdiction of appraisement of evidence---Prosecution was duty bound to prove the case against accused beyond doubt; and in that process not only, if there was any room for doubt, benefit thereof had to go to accused, but if any legal provision, which was to be relied upon in the appraisement of evidence; and was open to two clarifications, one beneficial to accused, had to be adopted---To bring home guilt of accused, legal evidence was required to be of incriminating nature to connect accused with the commission of crime beyond any shadow of reasonable doubt.

Nisar Ahmed Durrani and Aslam Perwaiz Khan for Appellants.

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

Date of hearing: 12th March, 2013.

2014 P Cr. L J 802

[Sindh]

Before Syed Muhammad Farooq Shah, J

Rao MUHAMMAD ARASTU---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.16 of 2013, decided on 11th December, 2013.

(a) Explosive Substances Act (XI of 1908)---

----Ss. 3, 5 & 7---Criminal Procedure Code (V of 1898), S. 561-A---Recovery of explosive substance---Quashing of proceedings---Sanction of Provincial Government for trial---Application filed by accused for his acquittal was dismissed by Trial Court---Plea raised by accused was that there was no sanction of Provincial Government for trial---Validity---Sanction for prosecution for holding trial under S.7 of Explosive Substances Act, 1908, was mandatory and sanction for prosecution of accused under S.5 of Explosive Substances Act, 1908, was condition precedent, therefore, trial/proceedings could not be concluded in express violation of prohibitory and mandatory provision of law and hence trial was vitiated---High Court, to prevent abuse of process of Trial Court quashed proceedings against accused before Trial Court---Application was allowed in circumstances.

Rafiq-ul-Islam's case 1998 PCr.LJ 1262; Syed Mukhtiar Hussain v. The State 1984 PCr.LJ 2181 and Irfan Ali alias Ghulam Raza v. The State 2011 YLR 522 ref.

Basheer Ahmed v. Zafar Islam PLD 2004 SC 298 and The State v. Raja Abdul Rehman 2005 SCMR 1544 distinguished.

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

----S. 265-K---Acquittal at any stage of trial---Scope---Provision of S.265-K, Cr.P.C. is meant to prevent rigours of prolong trial, when it is apparent from record that there is no probability of accused being convicted of the offence charged with---Trial Court can exercise judicial discretion in a fit and appropriate case but such power is not intended to be exercised arbitrarily---When Trial Court reaches at conclusion that it would be sheer futile exercise to linger on the case which may not culminate in conviction, the Court may exercise such powers as there is no clog of time on exercise of inherent powers by Court, which can be used at any stage.

Syed Suleman Badshah for Applicant.

Zahoor Shah, APG for the State.

Date of hearing: 5th December, 2013.

2014 P Cr. L J 824

[Sindh]

Before Farooq Ali Channa, J

HAJAN and another---Applicants

Versus

IST ADDITIONAL SESSIONS JUDGE, DADU and 2 others---Respondents

Criminal Revision Application No.177 of 2013, decided on 25th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 265-K---Penal Code (XLV of 1860), Ss. 365-B, 496-A & 506(2)---Kidnapping or abducting for extorting property, child marriage and criminal intimidation---Object and scope of S.265-K, Cr.P.C.---Acquittal---Defence evidence, reliance upon---Application filed by accused under S.265-K, Cr.P.C. was dismissed by Trial Court---Plea raised by accused was that documents filed by them in their defence were not considered by Trial Court while deciding their application---Validity---Applications relied upon by accused were filed after the incident of abduction and the applications and orders passed thereon were not part of investigation nor made part of proceedings pending adjudication before Trial Court---Accused could not be benefited of such documents at the stage of deciding application under S.265-K, Cr.P.C.---Object of S.265-K, Cr.P.C. was to save accused from malicious prosecution---Recourse to S.265-K, Cr.P.C. for acquittal of accused though could be made at any stage of the case but it could not pressed into service to stifle prosecution---Parties to litigations should be given fair opportunity to place on record their respective cases---Trial Court had rightly declined acquittal of accused under S.265-K, Cr.P.C.---High Court declined to interfere as the order passed by Trial Court did not suffer from any material infirmity or illegality---Revision was dismissed in circumstances.

Muhammad Sachal Awan for Applicants.

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

2014 P Cr. L J 840

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

Syed SOHAIL HASSAN---Petitioner

Versus

The STATE through Chairman, National Accountability Bureau and another---Respondents

Constitutional Petitions Nos.D-3682 of 2011 and D-2176 of 2012, decided on 3rd April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.5(r), 9(a) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---"Wilful default"---Corruption and corrupt practices---Pre-arrest bail, grant of---Jurisdiction of High Court to grant pre-arrest bail to accused---Scope---Petitioner/accused sought grant of pre-arrest bail on the ground that he had been falsely implicated for wilful default and that the quantum of default had not been adjudicated upon by a competent court---Validity---High Court could exercise its powers to grant pre-arrest bail (to NAB accused) sparingly in rare and exceptional circumstances for valid reasons---Prima facie, it appeared that documentary evidence had been collected against the accused showing that he was not depositing the amounts collecting by him and had committed wilful default as defined under S.5(r) of the National Accountability Ordinance, 1999---No mala fide had been attributed against the prosecution and prima facie an offence of corruption and corrupt practices as envisaged in S.9(a) of the Ordinance was made out against the accused---Contention of the accused/petitioner that he had been falsely involved in the case and that quantum of default could only be determined by competent court, could only be determined by the Trial Court where the case had proceeded to as no elaborate sifting of evidence could be made at the time of deciding bail application---Appreciation of evidence was the primary function of the Trial Court and only tentative assessment could be made by the High Court while deciding application for grant of bail---Reasonable grounds existed to connect the petitioner/accused in the case with the offence and he was not entitled to grant of pre-arrest bail--- Constitutional petition was dismissed, in circumstances.

Air Marshal (Retd.) Waqar Azim and 3 others v. The State 2002 YLR 1811; Mrs. Shahida Faisal and others v. Federation of Pakistan and others 2001 SCMR 294; Asif Sehgal v. National Accountbaility Bureau PLD 2003 Lah. 686; Irfan Jabbar v. The State 2004 Cr.LJ 583; Ahmed v. The State 2005 YLR 236; Mian Muhmud Ali Qasuri and others v. State PLD 1963 SC 478; Lakhi Narayan Kundu v. The Crow PLD 1955 Dacca 84; Faisal Hussain Butt v. The State 2009 SCMR 133; Asif Ayub v. The State 2010 SCMR 1735; The State v. Aziz alias Abdul Aziz PLD 1985 Kar. 27; The State v. Haji Kabeer Khan PLD 2005 SC 364 and Frida Rohail v. The State 2007 MLD 347 ref.

Mrs. Riaz Qayyum v. The State 2004 SCMR 1889 and State v. Haji Kabeer Khan PLD 2005 SC 364 rel.

Rasheed A. Rizvi for Petitioner (in C.P. No.D-3682 of 2011).

Khawaja Shamsul Islam for Petitioner (in C.P. D-2176 of 2012).

Noor Muhammad Dayo, Additional Deputy Prosecutor-General for the State/National Accountability Bureau.

Date of hearing: 7th March, 2013.

2014 P Cr. L J 852

[Sindh]

Before Farooq Ali Channa, J

AAMIR alias NAVEED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.48 of 2010 and Criminal Jail Appeal No.559 of 2010, decided on 25th April, 2013.

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

----Ss. 302, 394, 397, 452, 114 & 34---Qatl-e-amd, voluntarily causing hurt in committing robbery, robbery or dacoity with attempt to cause death or grievous hurt, house trespass after preparation for hurt, assault or wrongful restraint and abettor present when offence was committed---Appreciation of evidence---Allegations against the accused persons was that they committed qatl-e-amd while committing robbery---Trial Court convicted the accused---Validity---Trial Court had passed the judgment on 4-12-2009 whereas the appellant-accused had filed the Jail Appeal on 11-11-2010 which was time-barred---Complainant in his evidence before the Trial Court had narrated the incident in detail and identified the appellants-accused to be the same accused---Complainant was cross-examined but the defence counsel failed to extract anything favourable to appellant-accused---No improvement or exaggeration was found in the evidence of complainant which was corroborated by the other witnesses---Witnesses had deposed what they had seen---Witnesses were cross-examined at length and nothing had come on record to create even a slight doubt in prosecution case---Investigation Officer in his evidence before the Trial Court had deposed in detail whatever he had collected during investigation---Appellant-accused had not alleged enmity against any prosecution witness compelling them to give false evidence---Complainant's version that appellant-accused was beaten by people of locality was supported by medical evidence---Defence counsel did not cross-examine the Medical Officer nor suggested as to how the appellant-accused sustained the injuries---Counsel for the appellant-accused failed to point out any contradiction in the evidence of prosecution witnesses and any reason of false implication of appellant-accused by the said witnesses---Prosecution had succeeded to prove the charge against the appellant-accused without any shadow of reasonable doubt---Judgment against the appellant-accused was based upon unimpeachable evidence with cogent reason---Jail Appeal was dismissed.

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

----Ss. 302, 394, 397, 452, 114 & 34---Qatl-e-amd, voluntarily causing hurt in committing robbery, robbery or dacoity with attempt to cause death or grievous hurt, house trespass after preparation for hurt, assault or wrongful restraint and abettor present when offence was committed---Appreciation of evidence---Allegations against the accused were that he abetted the co-accused while committing robbery with qatl-e-amd---Trial Court convicted the accused---Validity---Same sentence for abettor was awarded by the Trial Court---Counsel for appellant/abettor had failed to point out any illegality or irregularity in the procedure adopted by the Judicial Magistrate for conducting the identification parade---Prosecution had succeeded to prove that appellant/abettor being associate of principal co-accused was available outside the flat of complainant---Judgment did not require to be interfered, appeal was dismissed.

Ghulam Qadir v. The State PLD 1960 SC 254 rel.

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

----S. 109---Abetment---Liability of abettor---If a person had instigated another to perpetrate a particular crime and the other person in pursuance of such instigation, not only perpetrated that crime, but in the course of doing so, committed another crime in furtherance of such instigation, the former was criminally responsible as an abettor in respect of such last mentioned crime, if the person, at the time of the instigation, knew that in the ordinary course of things probably another crime had to be committed in order to carry out original crime.

M. Tamaz Khan for Appellant (in Criminal Appeal No.48 of 2010).

Zulfiqar Langah for Appellant (in Criminal Jail Appeal No.559 of 2010).

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

Date of hearing: 16th April, 2013.

2014 P Cr. L J 865

[Sindh]

Before Sadiq Hussain Bhatti and Riazat Hussain Sahar, JJ

GHULAM QADIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-69 of 2010, decided on 25th July, 2013.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Benefit of doubt---Trial Court while framing the charge and recording plea of the accused ignored the purpose of the same---Date, time and quantity of contraband allegedly recovered from the accused was incorrectly mentioned in the charge---Said court did not examine the material available before it and in a superficial manner framed charge without application of mind--- Prosecution case was riddled with major contradictions and illegality had been committed in framing the charge---Prosecution had failed to prove the case against the accused---Benefit of doubt was given to the accused---Appeal was accepted and conviction and sentence of accused was set aside.

1995 SCMR 1345 rel.

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

----Ss. 221, 222, 223 & 224---Framing of charge---Purpose and requirements---Purpose of framing of charge was commencement of trial, to make accused aware, abreast and alert about the allegations and the basis on which allegations were levelled against him---Charge should contain all material particulars as to time, place, the specific name of the alleged offence, the manner in which offence was committed and particulars of the accused to afford him opportunity to explain the matter with which he was charged---Charge should be read over and explained to the accused and then he should be asked whether he was guilty or wanted any defence to make.

Miss Alia Sahar for Appellant.

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

Date of hearing: 25th July, 2013.

2014 P Cr. L J 885

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

NAWAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-20 of 2010, decided on 14th March, 2013.

(a) Criminal trial---

----Benefit of doubt---Conviction where direct evidence was doubtful---No conviction could legally sustain, where direct evidence was doubtful; because status of the other evidence was corroborative in nature.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Four out of five eye-witnesses, carried specific and clear words against accused that it was he who caused fire-arm injuries to deceased---Such direct allegations were undisputedly established through ocular account---Complainant was the real father of the deceased, while other witnesses were closely related to the deceased which had taken away chances of substitution of murderer with any innocent person, more particularly, when defence brought nothing reasonable on record; which could justify that those witnesses had such a motive on account of enmity or any other consideration---All the witnesses of ocular account had categorically named accused, not only during course of investigation, but during course of their examination in Trial Court---Defence counsel was not legally justified to claim any benefit from status of witnesses being related---Evidence of injured witnesses being within parameters of settled principles of evidence, their evidence was credible and reliable---Contradictions in respect of the distance of place of incident, could not be said to be fatal to prosecution case---Witnesses were subjected to lengthy cross-examination, but defence could not shatter their evidence--- Medical evidence was in conformity with ocular evidence--- Charge against accused was also strengthened from recovery of crime weapon, Kalashnikov along with six live bullets from the house of accused at the pointation of accused---All pieces of evidence, i.e., ocular, medical and circumstantial were in one line and made out a chain of unbroken link---Trial Court had not committed any illegality in recording impugned judgment---Prosecution having proved its case beyond reasonable shadow of doubt, conviction recorded by the Trial Court, was maintained, in circumstances.

Muhammad Tazeem and others v. The State and others 2000 YLR 1542; PLD 1982 Pesh. 25; Muhammad v. The State PLD 1979 Kar. 583; Sobho and 2 others v. The State PLD 2004 Kar. 8 and Ghulam Akbar and others v. The State 2008 SCMR 1064 ref.

(c) Criminal trial---

----Evidence of related or interested witness, corroboration of---No rule having universal applicability existed to the effect that evidence of a related or interested witness must be corroborated by ignoring the surrounding circumstances by means of some independent evidence; and statement of such witness could be relied, if found worthy of credence, and confidence-inspiring.

Khizar Hayat v. The State 2011 SCMR 429 and Hasil Khan v. The State 2012 SCMR 1937 rel.

(d) Criminal trial---

----Evidence of injured witness---Value---Injured witness, would not be relied upon ipso facto, because of injuries, but it was to be examined that, whether his evidence was trustworthy and confidence-inspiring.

(e) Criminal trial---

----Term "contradiction"--- Meaning--- "Contradiction" used in criminal administration of justice, would mean "those conflicts in the evidence of the witnesses which touching and disturbing the root of the charge", because minor contradictions were bound to creep by lapse of time.

(f) Criminal trial---

----Fault of prosecution or mistake of Investigating Officer---Effect---Complainant, should not suffer for the fault of prosecution or mistake of the Investigating Officer in properly noting down the facts, while in discharge of his duties and functions---If such discrepancy was allowed to supersede the direct ocular account, it would result in allowing the culprits safe passage by managing/arranging such discrepancies, which could well be claimed to be protected by prosecution to be bona fide mistake/errors.

Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713 rel.

Amanullah G. Malik for Appellant.

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

Date of hearing: 21st February, 2013.

2014 P Cr. L J 907

[Sindh]

Before Hasan Feroz, J

FAROOQ---Petitioner

Versus

Mst. ZAHABA BIBI and 2 others---Respondents

Constitutional Petition No.S-1334 and C.M.A. No. 6712 of 2013, decided on 24th December, 2013.

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

----S. 491---Constitution of Pakistan, Art. 199---Illegal custody of minor---Powers vested under S. 491, Cr.P.C. were co-extensive to that of Art. 199 of the Constitution regarding illegal custody of children.

(b) Islamic law---

----Custody of minor---Mother---Right of hizanat---Scope---Preferential right of hizanat vested with the mother.

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

----S. 491---Habeas corpus petition---Scope---Illegal custody of minor---Matter of immediate custody of minor could be promptly settled under S. 491, Cr.P.C.

PLD 2010 Kar. 119 and 1999 CLC 1212 rel.

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

----S. 491---Habeas corpus petition---Illegal custody of minor---Powers under S. 491, Cr.P.C., exercise of---Forum---Such power could be invoked by the District judge and also by the High Court.

(e) Islamic law---

----Custody of minor---Ailing mother---Right of hizanat---Scope---Ailing mother could not be deprived of her right of hizanat unless she transgressed the dictums of the superior Courts.

(f) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition--- Maintainability--- Alternate remedy not exhausted---Effect---Illegal custody of minor---Habeas corpus petition filed by mother against illegal custody of minor with the father---Father challenging legality of habeas corpus petition and order passed thereon by way of a constitutional petition under Art. 199 of the Constitution---Father instead of contesting the matter before the Sessions Court had approached the High Court under Art. 199 of the Constitution making several pleas, which were untenable as the District Court was already seized of the matter under habeas corpus jurisdiction---Plea of petitioner that he being the father had not kept the custody of minor illegally was a matter of habeas corpus wherein the matter with regard to illegality and improper custody would be determined by the concerned District Court---Father had invoked constitutional jurisdiction of the High Court under Art. 199(b)(1) of the Constitution, challenging the legality of proceedings before the Sessions Judge under habeas corpus jurisdiction without exhausting the adequate remedy available under Art. 199(1) of the Constitution---Powers under Art. 199 of the Constitution were subject to the satisfaction that no other adequate remedy was provided by law, whereas in the present case, District Court was (already) seized of the matter under habeas corpus jurisdiction (S. 491, Cr.P.C.)---Constitutional petition was dismissed accordingly.

M. Qadir Khan for Petitioner.

Saba Khan for Respondent No.1 with Respondent No.1 in person.

Siraj Ahmed for the State.

Date of hearing: 6th December, 2013.

2014 P Cr. L J 928

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

MUHAMMAD HANIF alias POCHO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-112 of 2002, decided on 13th February, 2013.

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

----Ss. 302, 149, 353, 324 & 404---Anti-Terrorism Act (XXVII of 1997), S.6(a)(b)---Qatl-e-amd, assault or criminal force to deter public servant from discharging of his duty, attempt to commit qatl-e-amd, dishonestly misappropriation of property and act of terrorism---Appreciation of evidence---Benefit of doubt---Out of five accused persons, two were identified by the complainant, but complainant could not give the features and figures of remaining three unknown accused mentioned in the F.I.R.---Source of head light of the vehicle in the midnight was a weak type of evidence regarding seeing a person from a distance of about one or two acres---Recovery of kalashnikov from the cattle pan of accused was quite doubtful---Accused had also been acquitted from the case under S.13(e) of Arms Ordinance, 1965---Identification parade of accused held after a considerable delay of about six days had lost its sanctity, when such delay was not explained---Prosecution had examined in all 13 witnesses including the eye-witnesses, but no tangible or unimpeachable evidence had been brought on record to prove the charge against accused---Recognition of accused at the place of incident from a considerable distance, was highly doubtful; and his identification by the prosecution witnesses after about 6 months, was also doubtful---Many circumstances existed creating doubt in the prosecution case, accused was entitled to be extended the benefit of doubt---Prosecution having failed to prove charges against accused beyond reasonable shadow of doubt, impugned judgment was set aside, accused was acquitted from the charges, and was directed to be released, in circumstances.

Muhammad Fayaz v. The State 2012 SCMR 522; Ayyub v. The State 1994 PCr.LJ 1057; Waid Umar v. the State 1994 PCr.LJ 409 and Abdul Sattar and others v. The State 2002 PCr.LJ 51 ref.

(b) Criminal trial---

----Benefit of doubt---If a single circumstance would create doubt, its benefit must be extended in favour of accused as a matter of right.

Zahoor Ahmed Baloch for Appellant.

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

Date of hearing: 17th January, 2013.

2014 P Cr. L J 949

[Sindh]

Before Farooq Ali Channa, J

JALAT KHAN---Appellant

Versus

The STATE and 7 others---Respondents

Criminal Acquittal Appeal No.345 of 2013, decided on 13th March, 2014.

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

----S. 265-K---Appeal against acquittal---Trial Court acquitting accused under S. 265-K, Cr.P.C. due to non-appearance of private witnesses on one or more dates of hearing---Legality---Case diaries reflected that on two separate dates, complainant and a prosecution witness were present, however, they were returned un-examined---Case record showed that prosecution witnesses were vigilant in pursuing their case---Charge sheet revealed that some police officials had also been cited as prosecution witnesses, but order of acquittal passed by Trial Court nowhere indicated that process was also issued against the official witnesses and they despite service failed to appear before the Trial Court for evidence---Trial Court on basis of non-appearance of private witnesses on one or more dates of hearing was not justified to observe that the complainant and other prosecution witnesses had nothing to depose against the accused, and in such circumstances there would be no probability of accused being convicted---Such observations prima facie appeared to be imaginary and unfounded---Impugned acquittal order passed by Trial Court was set-aside, and case was remanded to the Trial Court with direction to record evidence of prosecution witnesses and decide the case on merits---Appeal against acquittal was allowed accordingly.

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

----S. 265-K--- Power of court to acquit accused at any stage---Scope---Court was under an obligation to exercise powers under S. 265-K, Cr.P.C. sparingly and judicially and in no way arbitrarily.

R.K. Kohistani for Appellant.

Shah Imroze Khan for Respondents.

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

2014 P Cr. L J 959

[Sindh]

Before Aftab Ahmad Gorar and Salahuddin Panhwar, JJ

BISHAR AHMED---Applicant

Versus

Syed SIKANDAR ALI SHAH alias SHER and 3 others---Respondents

Criminal Transfer Application No.87 of 2011, decided on 25th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 526 & 497---Anti-Terrorism Act (XXVII of 1997), S. 23---Judge, Anti-Terrorism Court transferring case to Sessions Court while deciding a bail application under S. 497, Cr.P.C. without issuing notice to the complainant---Legality---Judge, Anti-Terrorism Court while passing such order deprived the complainant from right of hearing---No notice was issued to the complainant for the bail application--- Case could not be transferred without providing opportunity of hearing to the other side, thus Judge, Anti-Terrorism Court had negated basic principle of law that one could not be condemned unheard (audi alteram partem)---Impugned order of Judge, Anti-Terrorism Court was set aside in circumstances and case was returned back to the Anti-Terrorism Court for passing of fresh order on the point of jurisdiction after hearing the parties under S. 23 of Anti-Terrorism Act, 1997.

Ghulam Shabir Shar for Applicant.

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

Noor Hussain Malak for Respondents.

2014 P Cr. L J 967

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD AZEEM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-28 of 2009, decided on 28th January, 2013.

(a) Criminal trial---

----Evidence---Scope---Corroborative evidence---Evidentiary value---Ocular evidence matters in all criminal cases related to human body---No conviction can legally sustain only on corroborative pieces of evidence such as recovery, medical and circumstantial.

2011 SCMR 460 rel.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd and rioting with deadly weapons---Appreciation of evidence---Ocular account---Non-recovery of weapon---Accused was convicted and sentenced to 25 years of imprisonment by Trial Court for committing murder---Plea raised by accused was that no recovery had been effected from him---Validity---all prosecution witnesses of ocular account fully supported one another in respect of date and time of incident, place of incident and narration of incident and even had categorically stated that accused along with other co-accused caused fire shot to deceased---Accused was directly charged for playing active role in causing murder of deceased and there was no allegation of any incorrect identification of accused as parties were known to each other---Accused did not come out with any specific plea of his false involvement nor could succeed in causing grave dent in prosecution case with regard to innocence---Sufficient evidence was available against accused and Trial Court did not commit any illegality in believing ocular account---Mere non-recovery from possession of accused was not sufficient to disbelieve direct evidence---Recovery of crime weapon in criminal case related to human body and could only serve as piece of supporting evidence, if case was otherwise proved by other evidence independently---Prosecution successfully established charge against accused through ocular account, which was further supported by medical evidence and by the weapon with which, per ocular account, deceased was murdered by assailants including accused---Accused failed to show any material illegality in judgment passed by Trial Court nor there was any misreading or non-reading of evidence by Trial Court, hence no illegality or irregularity was committed by Trial Court in convicting the accused---Appeal was dismissed in circumstances.

PLD 2010 SC 642; Pervaiz Ahmad alias Peeja v. The State 2010 SCMR 1733 and Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---Substitution of culprit, principle of---Scope---Blood relations would not direct their finger at innocents with regard to direct allegations because such was a rare phenomenon and in normal circumstances said theory of substitution by blood relations at the cost of real culprit was ruled out.

Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

(d) Criminal trial---

----Maxim: Falsus in uno falsus in omnibus---Applicability---Such principle has lost its applicability in circumstances of the society and courts are under burden to sift the grain from chaff---Acquittal of co-accused cannot help other accused, more particularly, where case against co-accused was different from that of other accused.

(e) Criminal trial---

----Witness---Related witness---Scope---Mere relationship of witness is no ground to disbelieve evidence unless and until it is established by defence that those witnesses have such enmity or other consideration which can justify witness to be not truthful.

Khizar Hayat v. The State 2011 SCMR 429; Muhammad Iman v. The State 2011 SCMR 1954 and Hasil Khan v. The State and others 2012 SCMR 1936 rel.

(f) Evidence---

----Contradictions not grave in nature can be ignored safely, as minor contradictions creep in with passage of time.

2011 SCMR 460 rel.

Muhammad Hamzo Buriro for Appellant.

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

Date of hearing: 24th December, 2012.

2014 P Cr. L J 1002

[Sindh]

Before Shahnawaz Tariq, J

SHAHZAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-923 of 2013, decided on 31st January, 2014.

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

----S. 497---Penal Code (XLV of 1860), S. 397---Robbery or dacoity with attempt to cause death or grievous hurt---Bail, refusal of---Specific allegation in the F.I.R.---Injury corroborated by medical evidence---Accused allegedly committed robbery and in the process fired at the complainant---Police refused to lodge F.I.R. for the incident whereafter complainant filed an application before the Justice of Peace, which was allowed and ultimately an F.I.R. registered---Accused was nominated in the F.I.R. with specific role of committing robbery from the complainant and causing a fire shot which crossed through the arm of the complainant---Delay in registration of F.I.R. was explained by the fact that complainant remained in a hospital for treatment, and after being discharged, police refused to lodge an F.I.R.---Bullet injury received by complainant was corroborated by the medical evidence---Sufficient evidence was available with the prosecution to connect accused with the commission of the alleged offence---Accused was refused bail accordingly.

Faiz Muhammad v. The State 2008 YLR 2023 and Muhammad Nawaz alias Palu v. The State and another 2012 YLR 358 distinguished.

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

----S. 497---Penal Code (XLV of 1860), S. 397---Robbery or dacoity with attempt to cause death or grievous hurt---Bail---Co-accused already released on bail---Rule of consistency---Scope---Accused attributed specific role in the F.I.R., while co-accused was not attributed any specific role---Mere presence of co-accused shown at place of incident along with accused---Effect---Rule of consistency would not apply in such circumstances---Accused was refused bail accordingly.

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

----S. 497---Bail---Plea of alibi raised by accused---Such plea was to be determined by Trial Court after recording of evidence---While deciding bail application only tentative assessment of material available on record was to be made and deeper appreciation of evidence was not permissible.

Noman Sahto for Applicant.

Rana Sohail Mehmood files Vakalatnama on behalf of the Complainant, which is taken on record.

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

2014 P Cr. L J 1031

[Sindh]

Before Shahnawaz Tairq, J

HEERO---Applicant

Versus

MEHBOOB ALI and 11 others---Respondents

Criminal Miscellaneous Application No.S-238 of 2013, decided on 31st January, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 156 & 173---Investigating officer---Report submitted by Investigating Officer before Trial Court---Scope---Investigating Officer finding case to be false and recommending disposal of same in "B" class---Legality---Investigating Officer had no power to conclude the process of investigation by means of judicial proceedings---Iota of evidence produced by the complainant and prosecution witnesses though suffering from minor discrepancies, could not be discarded on the strength or basis of defence evidence including documents or affidavits produced by accused party before the Investigating Officer---Factum of genuineness of defence evidence was to be left to the Trial Court to determine such fact during trial.

Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354; Anwar Shamim and another v. The State 2010 SCMR 1791; Abdul Hameed v. The State PLD 1997 Lah. 164 and Riaz Gul v. The State through Superintendent of Police 2011 PCr.LJ 991 rel.

Naeem Talpur for Applicant.

Muhammad Hashim Leghari for Private Respondents.

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

Date of hearing: 20th January, 2014.

2014 P Cr. L J 1052

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rehman Shaikh, JJ

UMER FAROOQUE and 2 others---Petitioners

Versus

JUDGE, ANTI-TERRORISM COURT, MIRPURKHAS and another---Respondents

Constitutional Petition No.D-1484 of 2012 and Criminal Revision Application No.D-60 of 2013, decided on 6th June, 2013.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302, 324, 337-F(ii), 337-H(2), 364, 147, 148 & 149---Constitution of Pakistan, Art.199---Constitutional petition---Act of terrorism, qatl-e-amd, attempt to commit qatl-e-amd, causing badiah, rash or negligent act, kidnapping or abducting in order to murder, rioting, common object---Application by both the parties under S.23 of Anti-Terrorism Act, 1997 seeking transfer of the case from the Court of Anti-Terrorism to the ordinary Court of Session, was declined---Validity---Contents of the F.I.Rs. and the evidence of the prosecution witnesses in both the cases had not been taken by the Judge of Anti-Terrorism Court with particular reference to application of the provisions of Anti-Terrorism Act, 1997---No finding had been recorded to the effect as to whether the alleged incident struck terrorism and created any sense of insecurity in the public at large---Nothing had been stated in both the F.I.Rs. by the complainants, which could suggest that alleged incident, which reportedly took place at late hour at night, was witnessed by large number of people of the vicinity creating terror and sense of insecurity in the public or society---No lethal weapons i.e. Kalashnikov and Repeater as alleged in the F.I.Rs. were used in the incident---Judge of the Anti-Terrorism Court, while passing impugned orders, had also failed to examine, as to whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997---No finding had been recorded by the Judge of Anti-Terrorism Court with regard to gravity and heinousness of the alleged crime, nor the motive, object, design or purpose behind alleged offence had been discussed in the impugned orders---Anti-Terrorism Court had merely observed that alleged crime had the tendency to create terror and fear in the society---Neither any reason had been given, nor reference to any material or evidence had been made by the Anti-Terrorism Court for such conclusion---For the purpose of attracting the provisions of any section or Schedule to the Anti-Terrorism Act, 1997, the element of striking terror or creation of the sense of fear and insecurity in the public at large, by doing any act or thing, was sine qua non---Merely filing of bail application for the release of accused before Anti-Terrorism Court, would not debar accused from raising an objection with regard to jurisdiction of the Anti-Terrorism Court and to seek transfer of the case to the court of ordinary jurisdiction under S.23 of Anti-Terrorism Act, 1997---Present cases were not triable by Anti-Terrorism Court as the ingredients of Ss. 6 & 7 of said Act, were not attracted to the facts of the cases---Impugned orders declining transfer of case to ordinary Court of Session were set aside, in circumstances.

Muhammad Hafeez v. Special Judge, Anti-Terrorsim Court, Mirpurkhas and 2 others 2001 PCr.LJ 199; Ch. Bashir Ahmed v. Naveed Iqbal and 7 others PLD 2001 SC 521; Taj Muhammad v. Judge, Anti-Terrorism Court and another PLD 2003 Lah. 588; Mohabbat Ali and another v. The State and another 2007 SCMR 142 and Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11 ref.

Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370 distinguished.

Jawaid Choudhry for Petitioner (in Constitutional Petition No.D-1484 of 2012).

Jawaid Choudhry for the Complainant (in Revision Application No.D-60 of 2013).

Tahseen Ahmed H. Qureshi for Applicant (in Criminal Revision Application No.D-60 of 2013).

Muhammad Iqbal Kalhoro, Additional Prosecutor-General, Sindh.

2014 P Cr. L J 1067

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

HABIB---Appellant

Versus

The STATE---Respondent

Criminal Jail Application No.D-230 of 2006, decided on 12th September, 2013.

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

----S. 9(b)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Trial Court had not discussed the evidence of the prosecution witnesses given by them in cross-examination, but had drawn the conclusion that questions put to them being formal in nature, their evidence was uniform and consistent on material particulars of the case, and it stood unshattered---Trial Court while delivering the impugned judgment had not taken into consideration entire evidence---Extraordinary and abnormal delay of almost 7 months was taken in the delivery of sample to Chemical Examiner and it was not known as to why sample was kept at Police Station for such a long time---Major contradictions were noticed in the statement of the prosecution witnesses with regard to quantity of the seized narcotic---Arrest of accused was not made from the spot; and on the day of alleged incident, escape of accused on foot in presence of Police mobile, and in the morning light of the day, being unconvincing, conviction and sentence by the Trial Court, could not be maintained---Impugned judgment of the Trial Court was set aside and accused was acquitted of the charge by extending him benefit of doubt, in circumstances.

Muhammad Aslam's case 2011 SCMR 820 ref.

(b) Criminal trial---

----Benefit of doubt---Multiple factors and infirmities were not necessary for creating doubt and dent in the prosecution case---Single infirmity was sufficient for such doubt, and the benefit whereof must be extended to accused.

Nandan A. Kella for Appellant.

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

Date of hearing: 12th September, 2013.

2014 P Cr. L J 1075

[Sindh]

Before Sajjad Ali Shah and Sallahuddin Panhwar, JJ

AWAL RAEF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.379 of 2011, decided on 19th December, 2013.

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

----S. 29---Conscious possession of narcotics---Presumption---Onus lay upon accused to prove his unawareness about narcotic substance found in his possession.

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

----Ss. 9(c), 34, 35 & 36---Recovery of narcotic substance---Appreciation of evidence---Chemical analysis---Industrial Analytical Centre report---Scope---Poppy straw weighing 2125 kilograms was recovered from vehicle driven by accused---Trial Court convicted the accused and sentenced him to imprisonment for life---Plea raised by accused was that chemical analysis was not done in accordance with law---Validity---Laboratory report produced by prosecution of alleged test violated the mandate of law, as Industrial Analytical Centre, even to prosecution was neither notified by Federal or Provincial Government to be a testing laboratory nor any official of such laboratory had been notified as Analyst---Such report submitted by prosecution could not be made basis of conviction for offence under S.9(c) of Control of Narcotic Substances Act, 1997---Alleged samples which according to prosecution were recovered from six jute bags out of 40 and were weighing six grams were never sent for chemical analysis---Remaining recovered substance was never sealed, therefore, fresh samples could not be drawn from remaining case property, as no sanctity could be attached to recovered remaining substance which had been allegedly lying in godown of authorities for more than five years and that too in unsealed condition---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed in circumstances.

Collector of Customs (Preventive), Government of Pakistan, Custom House, Karachi v. Sajjad Muhammad Jaffer and 2 others 2009 PCr.LJ 232; Muhammad Imran v. The State 2011 SCMR 1954 and Israr v. The State 2011 PCr.LJ 1203 rel.

Ameer Zab v. The State PLD 2012 SC 380; Shaharzad v. The State 1993 SCMR 149; Shah Wali and others v. The State PLD 1993 SC 32; Rabnawaz v. The State PLD 1994 SC 858; Ikram Hussain v. The State 2005 SCMR 1487; Ghulam Qadir v. The State PLD 2006 SC 61 and Saif-ur-Rehman v. The State PLD 2009 SC 383 ref.

Aman Shirin Khattak for Appellant.

Dilawar Hussain, Standing counsel for the State.

Dates of hearing: 4th and 10th December, 2013.

2014 P Cr. L J 1093

[Sindh]

Before Nazar Akbar, J

JAMIL AHMAD BUTT and another---Applicants

Versus

The STATE through Prosecutor-General, Sindh and 2 others---Respondents

Criminal Miscellaneous Application No.326, M.As. Nos.8813 and 8814 of 2012, decided on 22nd April, 2014.

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

----Ss. 22-A & 154---Justice of Peace, jurisdiction of---Misuse of provisions of S. 22-A, Cr.P.C.---Mala fide intention of complainant---Scope---Alleged offence took place at "District South" of the city---Complainant resided in "District Central" of the city, whereas he attempted to lodge the F.I.R. in a police station situated in "District East"---Admittedly complainant did not reside permanently within the jurisdiction of the said police station ["District East"], nor the alleged offence took place within its jurisdiction---Justice of Peace at "District East" in such circumstances did not have jurisdiction to entertain application filed by complainant under S. 22-A, Cr.P.C.---Fact that complainant had not taken the trouble of lodging the complaint within the jurisdiction of the police station where, according to the circumstances of the case, the case should have been registered, showed his mala fides and attempt to misuse provisions of S. 22-A, Cr.P.C.---Complainant attempted to register a false case against accused persons with mala fide intention---Impugned order of Justice of Peace was set aside in circumstances and proceedings started against the accused persons were quashed---Application was allowed accordingly.

Imtiaz Ahmad Cheema v. SHO, Police Station Dharki, Ghotki 2010 YLR 189 rel.

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

----Ss. 22-A & 154---Justice of Peace, duty of---Directions to police for registration of F.I.R.---Misuse of provisions of S. 22-A, Cr.P.C.---Caution to be exercised by the Justice of Peace---Court was duty bound to take care of such misuse---Application under S. 22-A, Cr.P.C. should not be entertained lightly in a mechanical manner for direction to the police to register statement of complainant and start prosecuting the alleged accused persons---Such caution was even more necessary when the alleged offence was of a serious nature, which might create a law and order situation in the area.

Imtiaz Ahmad Cheema v. SHO, Police Station Dharki, Ghotki 2010 YLR 189 ref.

Syed Ali Ahmed Tariq for Applicants.

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

2014 P Cr. L J 1106

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

SABIR ZAMAN and 2 others---Applicants

Versus

The STATE and another---Respondents

Criminal Revision Application No.D-186 and M.A. No.6391 of 2013, decided on 30th January, 2014.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997). S.7(e)---Criminal Procedure Code (V of 1898), Ss.265-K, 435 & 439---Kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Application for acquittal---Out of 10 accused persons, 2 were convicted by the Trial Court, but they were acquitted in appeal---Out of remaining 8 accused persons, 5 were finally acquitted, whereas remaining 3, who absconded, were declared proclaimed offenders, and their case was kept on dormant file till their arrest---Said 3 accused persons after their arrest filed application under S.265-K, Cr.P.C., for their acquittal, which having been declined, said accused persons had filed revision application---Both main accused persons, had already been acquitted by High Court---Complainant and abductee had filed their affidavits before the Trial Court along with application under S.265-K, Cr.P.C., moved by accused persons, whereby they extended no objection, if said accused persons were acquitted---Recording of evidence afresh against said accused persons, against whom no serious allegations had been alleged in the F.I.R.; or other material collected by the prosecution, the proceedings of the Trial Court against accused persons afresh, would be a futile exercise; and there appeared no probability of their conviction in the crime---Impugned judgment passed by the Trial Court was set aside and accused were acquitted from the charge; their bail bond stood cancelled and surety was discharged.

2013 PCr.LJ 1037; 2012 PCr.LJ 999; 2009 YLR 169; 2005 YLR 2800; 1994 SCMR 798; PLD 1999 SC 1063; PLD 2008 Kar. 310; 2011 SCMR 508 and 1995 PCr.LJ 1424 ref.

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

----S. 265-K--- Power of court to acquit accused---Provisions of S.265-K, Cr.P.C., never prevented a court from acquitting an accused at any stage of the case, if after hearing the prosecution and accused, and for the reasons to be recorded, the court would consider that there was no probability of accused being convicted of the offence alleged against him---Though there was no legal embargo for exercising of power conferred under S.265-K, Cr.P.C., but even then the court, could not deprive the prosecution by giving an opportunity to produce tangible evidence under S.265-K, Cr.P.C.---Mandatory for the court that such discretion must be based on reasons, exercised with due care and caution with sole object to prevent fruitless trial, when it was apparent from the record that there was no probability of accused being convicted of the offence.

Tahseen Ahmed Qureshi for Applicants.

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

Date of hearing: 15th January, 2014.

2014 P Cr. L J 1123

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

HAJAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-151 of 2012, decided on 14th March, 2014.

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

----S. 154---Delay in lodging F.I.R.---Such delay must be explained by the complainant plausibly---If complainant, had failed to furnish the circumstance beyond his control, or sound justification in that regard, the allegations levelled in F.I.R. would be presumed to be the result of deliberation, negotiation, discussion and afterthought; with sole drive, and ulterior motive to get accused convicted---Such deliberate delay, could not be ignored by the court in routine manner.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)---Kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Unexplained delay of 55 days in lodging F.I.R., had created serious doubt; and it could be gathered that F.I.R. was lodged by the complainant after due deliberation, negotiation, discussion and afterthought with sole object; and ulterior motive to get accused persons convicted---Accused persons were not identified as culprits who had allegedly kidnapped the complainant---Culprits who allegedly received ransom, were muffled faces---Prosecution witness, who allegedly remained in contact with the culprits through mobile phone, and negotiated, and settled the quantum of the ransom, had neither mentioned said mobile number in his statement, recorded by the Police, nor disclosed in his evidence recorded before the Trial Court---Prosecution witness, who allegedly made payment of ransom amount to the culprits, neither mentioned serial numbers of currency notes, nor any identification marks were mentioned by the witness---Alleged recovery of cash from the house of accused persons could not be believed---Prosecution witnesses had introduced dishonest improvements in their statements during the trial, and made conflicting depositions---Abductees, were not recovered from accused, nor any ransom money was proved to have been demanded by him, or paid to him---No identification parade had been held for identification of accused; and prosecution had failed to establish his nexus with the alleged episode---Place of captivity was neither pointed out to the Investigating Officer, nor such mashirnama was prepared---Such missing piece of evidence alone, was fatal dent to the prosecution case, when the complainant had mentioned the place of captivity in F.I.R.---People of different castes were residing adjacent to the place of incident, but none from the locality was examined by the Police, or produced before the Trial Court to prima facie establish that the complainant was abducted---Series of admissions and material contradictions, had made the prosecution story highly doubtful---Prosecution had failed to bring guilt of accused persons to home, and charge could not be established beyond any shadow of doubt---Impugned judgment passed by the Trial Court was set aside, accused were acquitted from the charge and were released, in circumstances.

The State through Advocate-General Khyber Pakhtunkhwa, Peshawar v. Attaur Rehman and 3 others 2013 MLD 899; Mehboob v. The State 2012 PCr.LJ 415; Bashir Ahmed v. The State 2011 MLD 867; Muhammad Ali and others v. The State 2002 PCr.LJ 1631; Ali Bux and another v. The State 2001 YLR 1027; Ihtesham-ul-Haq v. The State 2010 PCr.LJ 852; Kak alias Abdul Razak v. The State PLD 1965 Kar. 31 and Muhammad Rafique v. The State 1997 SCMR 412 ref.

(c) Criminal trial---

----Evidence---Responsibility of the court---Prime responsibility of the court was to examine strictly the evidence adduced by the complainant or witnesses as a whole, and not in piecemeal only to the extent of alleged offence to conclude the same being trustworthy, and confidence-inspiring---Such statement must be deposed in natural way, and conviction should not be based upon the mere allegations levelled by the witnesses, and ignoring other connected relevant facts and circumstances.

(d) Criminal trial---

----Benefit of doubt---Each and every coin of doubt, must be deposited in the account of defence; and even one stroke of doubt was sufficient to demolish the entire prosecution structure, irrespective of heinousness of the alleged offence.

Muhammad Yousif Leghari for Appellants.

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

Date of hearing: 6th February, 2014.

2014 P Cr. L J 1141

[Sindh]

Before Shahnawaz Tariq, J

Mst. NASREEN alias NAGINA through Attorney---Applicant

Versus

The STATE and 6 others---Respondents

Criminal Revision Application No.214 of 2011, decided on 1st April, 2014.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Prevention of illegal possession of property---Claim of complainant that she was owner of subject flat, was dismissed by the Trial Court holding that complainant was not in possession of flat in dispute; and that her claim did not fall within the ambit of Illegal Dispossession Act, 2005---Comprehensive report submitted by S.H.O. concerned, had shown that complainant neither remained in possession of subject flat, nor she was owner of the same---Complainant had been claiming ownership as buyer of subject flat in the year 1983, but lease was not executed in her favour, nor such document had been produced by her; she had admitted that she never remained in physical possession of said flat and had failed to produce any evidence or documentary proof to establish her ownership over the same--- Mandatory requirement for invoking provisions of Illegal Dispossession Act, 2005 were also missing in the case as complainant had failed to mention the specific date and time of her alleged dispossession from said flat---Impugned order passed by Trial Court did not call for interference as the complainant had failed to point out any irregularity and infirmity in the impugned order---Impugned order was maintained, in circumstances.

2009 MLD 1162; PLD 2007 Quetta 72; 2009 MLD 850; PLD 2003 Lah. 48; 2001 CLC 1312; 2006 MLD 1942; 2007 PCr.LJ 1299; 2007 YLR 2236 and Nazir Ahmed v. Asif and 4 others PLD 2008 Kar. 94 ref.

Liquat Zaman for Applicant.

Naseer Ahmed for Respondents Nos.2 to 6.

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

2014 P Cr. L J 1150

[Sindh]

Before Hassan Feroze, J

FEROZE GOLAWALA and others---Applicants

Versus

VIRAF DAROGA and others---Respondents

Criminal Revision Applications Nos.198 of 2012 and 32 of 2013, decided on 20th February, 2014.

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

----Preamble--- Illegal Dispossession Act, 2005--- Scope--- Illegal Dispossession Act, 2005, was not remedial, but protective---Said Act was destined to be prospective in operation; and it being a special enactment, had been promulgated to discourage the land grabbers and to protect the rights of owners and the lawful occupants of the property as against the unauthorized and illegal occupants---Complaint under said Act could be entertained by Court of Session only, if some material existed showing involvement of the person complained against in some previous activity connected with illegal dispossession from immovable property, or the complainant demonstrated an organized or calculated effort by some persons operating individually or in group to grab by force, or deceit property to which they had no lawful, ostensible or justifiable claim---Preamble of Illegal Dispossession Act, 2005, showed that the lawful possession of a person had been protected though the possession of the occupier might not be in the capacity of owners, but the condition precedent for the said purpose was that the possession of the person over the property in question, must be lawful---Person who had been dispossessed, could have recourse to any remedy, such as filing of civil suit under S.9 of the Specific Relief Act, 1877, which was summary procedure; filing of civil suit for possession under Civil Procedure Code; criminal proceedings under Ss.145 & 146, Cr.P.C.; initiation of criminal prosecution under S.448, P.P.C.; and Illegal Dispossession Act, 2005, which had been specifically enacted to discover the land grabber---Said Act being special law, had empowered the court to conduct special investigation within stipulated period---Court thereafter was required to proceed with day-to-day trial.

PLD 2008 Lah. 358; PLD 2011 Kar. 624; 2007 PCr.LJ 1920 and PLD 2007 SC 423 ref.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2012 MLD 483; Ch. Muhammad Aslam and another v. Sirdar Ahmad Nawaz Sukheri and another 2011 YLR 647; Muhammad Riaz Ahmed Khan v. Imran Abdullah and 5 others 2009 PCr.LJ 491 and Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 distinguished.

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

----S. 3---Prevention of illegal dispossession of property---Ingredients or elements of S.3(1) of Illegal Dispossession Act, 2005, were that accused entered into or upon any property without having any lawful authority to do so; and with intention of dispossession of or grabbing, controlling, or occupying the property from the owner or occupier thereof---More essential ingredient of Illegal Dispossession Act, 2005, was that there should be dispossession of the owner or occupier of the property---If the owner or occupier, would not level allegation of his dispossession, or forcible occupation of accused over the property, provision of Illegal Dispossession Act, 2005, would not be applicable---In order to constitute offence, complainant must disclose existence of both an unlawful act and criminal intent---For the purpose of attracting provisions of S.3 of Illegal Dispossession Act, 2005, court was required to examine, as to whether property was an immovable property; that the person was owner, or the property was in his lawful possession; that accused entered into or upon the property unlawfully; that such entry was with intention to dispossess i.e., ouster, evict or deriving out of possession against the will of person in actual possession, or to grab i.e. capture, seize suddenly, take greedily or unfairly---If anybody would control or hold unlawful or illegal possession of the property at the time of enactment of Illegal Dispossession Act, 2005, then he would come within the ambit of said Act---Determination as to title of the property, was not the function or in the domain of the criminal court---Court was not competent to give any finding in regard to the authenticity of a document in the matters relating to Illegal Dispossession Act, 2005, with reference to its S.3.

PLD 2011 SC 181; 2002 MLD 1527 and 2009 PCr.LJ 134 ref.

Muhammad Zahid Khan along with Masood Ali and Ghulam Sarwar for Applicants (in Criminal Revision Application No. 198 of 2012).

Mirza Sarfaraz Ahmed for Respondents (in Criminal Revision Application No.198 of 2012).

Muntazir Mehdi, A.P.-G. for the State (in Criminal Revision Application No.198 of 2012).

Mirza Sarfraz Ahmed for Applicant (in Criminal Revision Application No.32 of 2013).

Ghulam Sarwar Chandio, Habib Ahmed Tajik and Pir Darwesh for Respondents (in Criminal Revision Application No.32 of 2013).

Shahzado Saleem, A.P.-G. for the State (in Criminal Revision Application No.32 of 2013).

Date of hearing: 26th November, 2013.

2014 P Cr. L J 1176

[Sindh]

Before Shaukat Ali Memon, J

ZAHOOR GHALOO---Applicant

Versus

The STATE---Respondent

Bail Application No.S-321 of 2013, decided on 30th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(2)---Penal Code (XLV of 1860), Ss.337-A(iii) & 337-N(2)---Haraabah, shajjah-i-hashimah---Bail, grant of---Previous convict, habitual or hardened, desperate or dangerous criminal---Scope---Mere registration of other F.I.Rs.---Punishment of Ta'zir was only awarded to an offender who was a previous convict, habitual or hardened, desperate or dangerous criminal or the offence had been committed by him in the name or on the pretext of honour---Although in the present case several F.I.Rs. were registered against the accused, but record of his conviction in any of the said F.I.Rs. was not placed on record---In absence of such conviction record, the accused could not be stated to be a habitual, hardened and desperate criminal inviting punishment of Ta'zir under S. 337-A(iii), P.P.C.---Even otherwise maximum punishment of 3 years as Ta'zir did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was also in jail for over 6 months---Accused was granted bail in circumstances.

Amjad Ali Sahito for Applicant.

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

Date of hearing: 16th September, 2013.

2014 P Cr. L J 1185

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

MUJAHID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-83 of 2013, decided on 30th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-A, 324, 34, 341 & 353---Kidnapping or abdution for extorting property, valuable security, etc., attempt to commit qatl-e-amd, common intention, wrongful restraint, assault or criminal force to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---Police encounter with kidnappers---Accused and co-accused persons were allegedly shifting the abductee to another place in a car when the police encountered them at a check point---Accused and co-accused persons allegedly fired at the police, but neither party sustained any fire-arm injury nor was any vehicle hit by any bullet---Accused was not apprehended at the spot and his name was allegedly disclosed by one of the co-accused who was apprehended during the police encounter---Car seized by police did not belong to accused---Abductee did not implicate the accused in his statement recorded before the Magistrate---Moreover no F.I.R. was lodged at the time of abductee's abduction, and even after his recovery, the situation remained the same---Additionally no recovery was made from the person of accused---Prosecution evidence that accused was identified by police officials in light of torch and that his name was disclosed by the apprehended co-accused required serious consideration---Case against accused fell under the ambit of further inquiry---Accused was granted bail accordingly.

Ayaz Hussain Tunio for the Applicant.

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

Date of hearing: 15th January, 2014.

2014 P Cr. L J 1193

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

MUHAMMAD QASIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-90 of 2013, heard on 13th March, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Police, allegedly recovered polythene bag from accused containing 15 big and small pieces of charas weighing 7 Kgs.---Small pieces separated from recovered charas weighing 10 gms were sealed in one packet for Chemical Examination---No detail or description was given to the effect that as to which sample was separated, from which piece of recovered charas---Complainant had not produced before the court, the black polythene bag which contained charas---Sample of recovered substance was sent to Chemical Examiner with unexplained delay of one week; and there was difference of weight as complainant allegedly separated 10 gms charas for chemical examination, while as per chemical examination report, the weight of substance was 9 grams---Statements of prosecution witnesses were not confidence-inspiring and circumstances had created serious doubt regarding the truth of prosecution story---Prosecution had failed to bring the guilt of accused at home---Defence had succeeded to make out its case for extension of benefit of doubt---Impugned judgment passed by the Trial Court, was dismissed, accused was acquitted from the charge and was released, in circumstances.

Irfan Ali Bhayo v. The State 2008 YLR 37 and Umer Rehman v. The State PLD 2009 Kar. 284 ref.

Ishrat Ali Lohar for Appellant.

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

Date of hearing: 13th March, 2014.

2014 P Cr. L J 1215

[Sindh]

Before Nazar Akbar, J

SOHAIL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.605 of 2013, decided on 15th May, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd common intention---Bail, grant of--- Further inquiry---Delay in conducting identification parade---Effect---Unwitnessed murder---Accused was arrested and implicated for the offence on basis of spy information received by the complainant, five days after the incident---Accused was neither mentioned in the F.I.R. nor any weapon used in the incident was recovered from him---Complainant did not mention the circumstances in which he came to know that accused was involved in the murder---Complainant effected the arrest of accused but he was not an eye-witness of the incident---Identification parade took place after a lapse of 14 days and during such time accused remained in police custody---Such circumstances provided sufficient grounds for further inquiry into guilt of accused---Accused was in jail for more than a year and three months and investigation of the case was finalized---Accused was no more required for any further investigation---Accused was granted bail in circumstances.

2005 YLR 1637 and 1994 PCr.LJ 504 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Unwitnessed/blind murder---Bail---Scope---Further inquiry---Delay in conducting identification parade---Effect---Unexplained delay in holding of identification parade of accused created serious doubts in story of the prosecution and thus it became a case for further inquiry in terms of S. 497(2), Cr.P.C.

2005 YLR 1637 and 1994 PCr.LJ 504 rel.

Qadir Hussain Khan for Applicant.

Riaz Ahmed Bhatti for the Complainant.

Abrar Ali Khichi, Assistant Prosecutor-General, Sindh for the State.

Date of hearing: 15th May, 2014.

2014 P Cr. L J 1230

[Sindh]

Before Sadiq Hussain Bhatti, J

LEEMON---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.262 of 2010, decided on 25th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-e-amd, common intention---Appreciation of evidence---Trial Court, while convicting accused mainly had relied on ocular testimony and recovery of crime weapon, which did not corroborate the judicial confession of accused---Confessional statement of accused, which was not corroborated by any other material evidence---Ocular evidence had not inspired confidence being interested and inter-related---Incident took place at dark night and torch-light with which accused was identified was not produced---Medical evidence and ocular evidence, were discrepant---Tapedar, who alone could have thrown light on the correct situation, was not examined by the Trial Court without giving a word of comment in the impugned judgment---Police placed the names of co-accused in column No.2 of the charge sheet having no sufficient evidence against them---Trial Court acquitted the co-accused on the basis of said evidence---Trial Court disbelieved the evidence of witnesses in respect of acquittal of co-accused, but believed the same set of prosecution witnesses in respect of accused---Accused was acquitted and was ordered to be released, in circumstances.

1986 PCr.LJ 1153 and 1999 Cr.LJ 614 ref.

Waseemul Haque v. The State 1999 Cr.LJ 614 rel.

Rasool Bux Palejo for Appellant.

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

Date of hearing: 8th April, 2013.

2014 P Cr. L J 1242

[Sindh]

Before Muhammad Junaid Ghaffar, J

SHAHZAIB MUGHAL---Applicant

Versus

IST ADDITIONAL SESSIONS JUDGE HYDERABAD and 3 others---Respondents

Criminal Revision Application No.S-4 of 2014, decided on 11th April, 2014.

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

----Ss. 22-A & 22-B(c)---Application to Justice of Peace for ordering the S.H.O. to register F.I.R.---Applicant had filed affidavits of three witnesses, and one of the witnesses had stated that the contents of affidavit were not read over to him, and that his signatures were obtained forcibly on the affidavits---Dispute being between the applicant and alleged accused over some matrimonial affairs, false implication of accused could not be ruled out---Time of alleged occurrence reported by purported eye-witnesses of the applicant did not corroborate with each other; which had led to presumption that either incident did not take place, or the witnesses were not present at the relevant time---Applicant, had tried to invoke the constitutional jurisdiction of High Court, as well as the remedy under Ss.22-A & 22-B, Cr.P.C., simultaneously; without disclosing the same before High Court---Person who sought equity and justice from the High Court, had to firstly disclose all the relevant facts and the ground realities before the High Court; and the conduct of the person seeking justice from High Court, either under constitutional jurisdiction or under revisional jurisdiction, had to be looked into; as the applicant must come before the High Court with clean hands; and without suppressing the material facts from the court, irrespective of the facts that whether such facts were in favour of the said person or against---Applicant had not come with clean hands, and it appeared that only purpose of the applicant by filing application under Ss.22-A & 22-B, Cr.P.C. and constitutional petition, was to impress upon or to influence the proceedings/cases against his brothers pending in different F.I.Rs.---Application filed by the applicant under Ss.22-A & 22-B, Cr.P.C. having rightly been dismissed, revisional application was dismissed in circumstances.

Akhtar Hussain v. Abdul Waheed and 2 others 2010 YLR 558; Abdul Rahim v. S.H.O. Police Station Adilpur, District Ghotki and 2 others 2013 YLR 581 and Ghulam Rasul v. Additional Sessions Judge, Gujranwala and 4 others 2013 PCr.LJ 999 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Conduct of petitioner---Relevance.

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

----S. 439---Revision---Conduct of accused---Relevance.

Fayyaz Hussain Sabki for Applicant.

Altaf Hussain Khokhar for Respondent No.2.

Imamuddin Otho for Respondent No.3.

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

Respondents Nos.2 and 3 in person.

2014 P Cr. L J 1249

[Sindh]

Before Hasan Feroz, J

MUHAMMAD KHURSHEED---Petitioner

Versus

IHTISHAM and others---Respondents

Constitutional Petition No.S-1305, C.A.Ms. Nos.7047 and 6586 of 2013, decided on 21st December, 2013.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 491---Guardians and Wards Act (VIII of 1890), S. 7---Constitutional petition filed before the High Court seeking custody of minors---Maintainability---Case for custody of minors already pending before the Guardian Judge--- Effect--- Custody of minors with maternal grandmother after death of mother---Scope---Mother of children passed away, whereafter their custody was taken over by their maternal grandmother---Father of children sought their custody from the maternal grandmother, contending that they were in illegal custody---Validity---Issue of custody of minors was the subject-matter of a case which was pending in the Guardian Court--- Invoking Art. 199 of the Constitution read with S. 491, Cr.P.C. was thus untenable at present stage---Custody of minors with their maternal grandmother was not to be disturbed---Father had not brought on record any material to show as to who could look after the minors with the same zeal and affection as that of a maternal grandmother---Custody of minors with their maternal grandmother was not apparently illegal in such circumstances---Father had an equally efficacious remedy available under the Guardians and Wards Act, 1890---Constitutional petition being not maintainable was dismissed accordingly.

PLD 2004 SC 1 and 2011 YLR 348 ref.

Roomi Iqbal for Petitioner.

Ms. Rana Khan for Respondents.

Date of hearing: 6th December, 2013.

2014 P Cr. L J 1265

[Sindh]

Before Nazar Akbar, J

IMTIAZ KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 378 of 2014, decided on 21st May, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148, 149, 427 & 504---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, mischief causing damage to the amount of fifty rupees, intentional insult with intent to provoke breach of peace---Bail, grant of---Further inquiry---Tribal enmity--- Cross-version F.I.Rs.---Discrepancies in prosecution evidence---Persons belonging to complainant party and accused party both lost their lives during the occurrence---Complainant party contended that deceased from accused party was also killed by their own firing---Validity---Prima facie it was difficult to say that fatal injuries caused to deceased from both sides were caused by one and the same weapon, as the post-mortem report did not suggest the same---Police refused to register cross-version F.I.R. of accused party, and it was only registered subsequently on the directions of Justice of Peace---Refusal of police to register counter-version of accused party, prima facie under the influence of complainant party could not be ruled out---Contents of the mashirnama regarding place of occurrence and dead bodies and the post-mortem report of a victim from the accused party's side gave credence to the counter-version case/F.I.R. of accused party---Another discrepancy in the prosecution story was that mashirnama of dead bodies of deceased from both sides was prepared at the same time and they were sent to the hospital, but body of deceased from accused party's side reached the hospital five hours after the other one---Accused was no more required for further investigation as he had already been remanded to jail custody---Case against accused called for further inquiry into his guilt---Accused was admitted to bail accordingly.

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

----S. 497(2)---Bail, grant of---Scope---Heinous crime---Bail could not be refused merely on the ground that accused was involved in a heinous crime, particularly when he had made out a case of further inquiry into his guilt on several counts.

Farooq H. Naek, Shazia Ahmed Henjra, Nazeer Hussain Shar, Shraz Rajpur and Asadullah Channa for Applicant.

A.Q. Halepota, Mehmood A. Qureshi, Moharam G. Baloch, Jamshed Iqbal and Haqdad Khoso for the State.

Date of hearing: 7th May, 2014.

2014 P Cr. L J 1295

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

BARKAT and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-26 of 2011, decided on 12th November, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Accused persons had explicitly understood the charge against them---Witnesses in the case were Excise Officials, their evidence would not become invalid and could not be discarded, unless they were shown to be inimical and/or interested---Accused persons had admitted in their statements recorded on oath that they had no enmity with said official witnesses--- Testimony of such witnesses could not be brushed aside, unless and until the contrary was proved---Trial Court had rightly believed the same to the extent of recovery of narcotics from the vehicle---No embargo existed on the complainant being Investigating Officer---Accused was driver of the vehicle and the driver had to be presumed to be having knowledge of availability of recovered charas; and such presumption was corroborated with the evidence---Accused, in circumstances, had rightly been convicted.

Nadir Hussain and another v. The State 2007 YLR 1601; Muhammad Noor and others v. The State 2010 SCMR 927 and Zafar v. The State 2008 SCMR 1254 ref.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Unless mens rea was there, charge under the Control of Narcotic Substances Act, 1997 could not be held good---Mere presence of co-accused in the vehicle, had been alleged, not a single word had been deposed regarding his association with driver, or any connection with the recovery by prosecution witnesses---Evidence did not imply knowledge of co-accused, as regards availability of charas---Co-accused who was neither driver, nor a cleaner of the vehicle from which contraband was recovered, had got a lift from accused (driver)---Conviction against co-accused, could not be sustained, in circumstances; he was acquitted of the charge and was ordered to be released, immediately.

Muhammad Iqbal Mahar for Appellant No.1.

Abdul Baqi Jan Kakar for Appellant No.2.

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

Date of hearing: 10th October, 2013.

2014 P Cr. L J 1308

[Sindh]

Before Salahuddin Panhwar and Ahmed Ali M. Shaikh, JJ

Syed ALI RAZA SHAH and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-22 of 2009, decided on 28th February, 2013.

(a) Criminal trial---

----Evidence---Circumstantial evidence---Scope and corroboration---Circumstantial evidence was to be considered as a chain, and each piece of evidence was link in the chain, if any one link would break the chain would fail---Circumstantial evidence could only form basis for conviction, when it was compatible with the innocence of accused, or guilt of any other person; and in no manner be incapable of explaining upon any reasonable hypothesis, except that of 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.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, kidnapping or abducting a person under the age of ten, act of terrorism---Appreciation of evidence---No ocular evidence was available in the case, except the admission and circumstantial evidence---Absence of ocular evidence could not be a reason to acquit accused persons, but conviction could be awarded on circumstantial evidence; if it was surfaced that same was connected with all the aspects with regard to the commission of the offence by accused persons---Co-accused though had made extra-judicial confession but no extra-judicial confession was made by accused, one of the links of circumstantial evidence i.e. extra judicial confession, therefore, was not available to the accused---Said link, in no way could be insisted in making the chain of unbroken link to claim conviction against accused---Recovery of the dead body, was not made only at the pointation of co-accused, but was effected from the house of co-accused---Both links i.e. pointation of place of recovery of dead body, and belonging of place of recovery, were never proved against accused---Medical evidence had negated the use of the alleged recovered iron rod, recovery of crime weapon even did not find support from the medical evidence---While acquitting co-accused, whose case stood on same set of evidence, principles of appreciation of evidence were one and the same---Acquittal of some of accused and conviction of the others, was not within spirit of safe criminal administration of justice---Set of evidence against accused being also same as was against those co-accused, who had been acquitted from the charge, accused was also entitled for same treatment---Prosecution having failed to establish the charge against accused beyond reasonable doubt, impugned judgment to the extent of conviction awarded to accused by the Trial Court, was set aside, and he was released, in circumstances.

(c) Criminal trial---

----Recovery---Recovery of crime weapon---Evidentiary value---Mere recovery of alleged crime weapon was not sufficient to claim conviction in absence of direct evidence, or least it found support from other pieces of evidence making a chain of unbroken links, which too, should be above board and doubts---Not the recovery of crime weapon which proved the charge, but it was the direct or circumstantial evidence, which established the material part of the charge i.e., manner in which the offence was committed by use of such weapon---Status of the recovery of crime weapon, was only a corroborative piece of evidence in joining link of chain by proving the guilt.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, kidnapping or abducting a person under the age of ten, act of terrorism---Appreciation of evidence---Prosecution claimed conviction of co-accused on the basis of extra-judicial confession; pointation of dead body by him; recovery of dead body from his house and medical evidence---Prosecution witnesses had specifically claimed that co-accused confessed his guilt in their presence; and also narrated the manner of the incident; wherein he expressed that it was he who closed the mouth of the deceased minor boy---Said extra judicial confession of co-accused further strengthened by his subsequent act of leading the Police party to his house from where the dead body of boy was recovered at his pointation---Medical evidence also corroborated the extra-judicial confession of co-accused---Extra-judicial confession of co-accused, stood corroborated by further events leading up to recovery of dead body from his own house, and confirmation of cause of death in the manner stated by him---Minor contradiction or mere delay alone in lodging of F.I.R., were not helpful for defence to claim acquittal of co-accused---Each piece of circumstantial evidence, perfectly fitted in another and made out a chain, which was sufficient to hold the co-accused guilty of the offence---Conviction of co-accused was sustainable under the law---Impugned judgment, was maintained to the extent of co-accused, in circumstances.

2004 SCMR 204 ref.

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

----Art. 40---Fact proved by subsequent fact---Admissibility---Fact proved by subsequent fact, was admissible under Art.40 of Qanun-e-Shahadat, 1984.

Syed Jaffer Ali Shah for Appellants.

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

Date of hearing: 28th February, 2013.

2014 P Cr. L J 1329

[Sindh]

Before Aftab Ahmed Gorar, J

IZHAR HUSSAIN---Applicant

Versus

INSPECTOR ASLAM PERVEZ, SHO, KHOKHRAPAR POLICE STATION, KARACHI and another---Respondents

Criminal Miscellaneous Application No.319 of 2012, decided on 24th December, 2012.

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

----Ss. 249-A, 265-K & 561-A---Abuse of process of law---Inherent powers of High Court---Scope---High Court has been bestowed inherent powers to make such orders to prevent abuse of process of law and to secure ends of justice under S.561-A, Cr.P.C.---Normally, in first instance Trial Court should be approached under S.249-A or 265-K, Cr.P.C. as the case may be---No bar existed to invoke inherent jurisdiction of High Court under S.561-A, Cr.P.C.

2011 SCMR 863; 1995 PCr.LJ 256; 1997 PCr.LJ 991; PLD 1985 SC 62; 1993 SCMR 187; 1997 SCMR 304; 1997 SCMR 1503 and 2000 PCr.LJ 502 ref.

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

----S. 409---Criminal Procedure Code (V of 1898), S. 561-A---Criminal breach of trust---Quashing of proceedings---Accused was Station House Officer of police station and he was alleged to have misappropriated 4 kilograms of Charas which was "case property" in a case---Validity---During investigation nobody came forward to say anything against accused, except one police official who stated in his statement under S.161, Cr.P.C. that 10 kilogram of Charas was recovered from a rickshaw---Neither the witness produced any departure entry nor any memorandum of recovery before Investigating Officer---According to the witness, he conducted raid along with accused and recovered 10 kilogram of Charas from the house of accused---After conducting investigation Investigating Officer submitted charge sheet before concerned Magistrate who directed to send investigation to Anti-Corruption Authorities---High Court directed the Anti-Corruption Establishment to depute responsible and well reputed officer to conduct investigation in transparent manner and restrained the senior police officials from taking any action against accused till final decision of case by Trial Court---Petition was disposed of accordingly.

Mehmood A. Qureshi for Applicant.

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

Date of hearing: 17th December, 2012.

2014 P Cr. L J 1347

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM ABBAS---Applicant

Versus

S.H.O. POLICE STATION DARRI and 2 others---Respondents

Criminal Miscellaneous Application No.S-122 of 2013, decided on 28th June, 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---Procedure---Justice of Peace dismissed application of complainant under Ss. 22-A & 22-B, Cr.P.C.---Plea of complainant was that Justice of Peace did not consider his application and at first called report from Station House Officer concerned, which was unnecessary and unwarranted under the law; that Justice of Peace while deciding the application deeply went into merits and demerits of the case, when he was only supposed to form an opinion about the offence being cognizable or non-cognizable from the facts narrated; and that Justice of Peace was not required to issue notice to the accused or to police or to anybody else, and had to form his own independent opinion from the facts narrated to him---Validity---In view of the plea of the complainant, impugned order of Justice of Peace was set aside and concerned Station House Officer was directed to record statement of complainant, and if from the contents of his statement a cognizable offence was made out, then to enter the same into S. 154, Cr.P.C. book---Application was allowed accordingly.

PLD 2005 Kar. 621 and 2012 MLD 736 rel.

Muhammad Afzal Jagirani for Applicant.

Fida Hussain Shah, State counsel for Respondents.

2014 P Cr. L J 1358

[Sindh]

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

NAZEER and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.77 and 78 of 2013, decided on 29th January, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Allegedly recovered charas was weighed from a different place, but the prosecution had not brought any evidence on record to corroborate the same---Delay of about two days took place in sending the samples for chemical examination, and same was not plausibly explained by prosecution as to where the samples were kept during that period---All Police Officials, though could not be termed as unreliable witnesses, but, when local persons were available at the site, and Police party was having prior information, failure of prosecution in not joining private witnesses, the manner of recovery, lost its sanctity---Single dent in prosecution case was sufficient to acquit accused---Impugned judgment was set aside and accused were acquitted in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820 ref.

Abdul Salam Memon for Appellants.

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

Date of hearing: 29th January, 2014.

2014 P Cr. L J 1378

[Sindh]

Before Ahmed Ali M. Sheikh and Syed Muhammad Farooq Shah, JJ

Messrs MEMON MOTORS PRIVATE LIMITED through General Manager---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

Constitutional Petitions Nos.D-692, D-617, D-998, D-1070, D-1035, D-1037, D-1036, D-996, D-995, D-997, D-1081 and D-1264 of 2013, decided on 21st April, 2014.

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

----S. 19---Sales Tax Act (VII of 1990), Ss. 25 & 37---Constitution of Pakistan, Art. 199---Constitutional petition---Summoning of record---Registered persons, rights of---National Accountability Bureau issued notices to petitioners directing them to produce their sales tax record---Plea raised by petitioners was that such record could only be requisitioned by sales tax department---Validity---Notices in question did not depict that petitioners had knowingly and fraudulently made false statements, false declarations, false representations, false personifications, gave any false information or had issued or used false documents which were forged or false---Proceedings of National Accountability Bureau under S.19 of National Accountability Ordinance, 1999, in oppressive manner, were against Fundamental Rights of 'registered persons' as guaranteed under the Constitution---Such misuse of powers could not be overlooked or ignored by High Court being custodian of the Constitution---High Court was under legal duty to defend, preserve and enforce rights of people and their Constitutional guarantees---National Accountability Bureau authorities under National Accountability Ordinance, 1999, in respect of their functions, use of power by them in unbridled manner for prosecution of innocent registered persons in disregard to their Constitutional guarantees, rights, liabilities and duties, could not be allowed such oppressive use of penal law through such demonstration---Purported initiation of action under S.19 of National Accountability Ordinance, 1999, was a series of moves initiated by National Accountability Bureau to pressurize petitioners over their legal rights, which could be invoked and settled through Inland Revenue Authorities---No legal sanctity was attached to the notices as under the garb of S.19 of National Accountability Ordinance, 1999, petitioners could not be compelled to produce record of sales tax/income tax---High Court quashed notices under S.19 of National Accountability Ordinance, 1999, issued to petitioners, being coram non judice---Petition was allowed accordingly.

Ghulam Hussain Baloch and another v. Chairman NAB, Islamabad and others PLD 2007 Kar. 469; Dr. Arslan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; M. Yousuf Arain v. Chairman NAB and another 2008 MLD 1431; Niaz Ahmed Baloch v. Chairman NAB and 4 others 2008 MLD 1451 and Raja M. Zarat Khan and another v. Federation of Pakistan through Secretary Ministry of Cabinet Division and 2 others PLD 2007 Kar. 597 rel.

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

----S.19---Call up notice---Requisition of information---Pre-condition---There should be specific mention of required information, in respect of offence alleged or any matter which can suggest that provision of National Accountability Ordinance, 1999, rule or order made thereunder had been contravened---Was not possible for the person to whom notice was issued, due to his ignorance of allegations or offence or facts on which information was to be provided, that person would be in a position to fulfil the demand of National Accountability Bureau.

Ghulam Hussain Baloch and another v. Chairman NAB, Islamabad and others PLD 2007 Kar. 469 rel.

Ahmed Ali Ghumro and Faiz H. Shah for Petitioner.

Noor Muhammad Dayo, DPG NAB and Waleed Ansari, D.A.-G. for Respondents.

Dates of hearing: 27th March and 8th April, 2014.

2014 P Cr. L J 1391

[Sindh]

Before Abdul Maalik Gaddi, J

Syed GULLAB SHAH and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-277 of 2013, decided on 10th September, 2013.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Possession and transportation of narcotic---Bail, refusal of---Accused was apprehended by the police on spy information and was found to be transporting huge quantity of narcotic i.e. 8 kilograms of charas through a car, which was under his control at the time of arrest---Although only police officials and no private persons were associated as witnesses to the alleged recovery, but it was no ground to grant bail unless some mala fides appeared on part of police---No enmity or ill-will had been brought on record by accused against the police to show their false implication in the case---Although samples were sent to the chemical expert with some delay, but Rr. 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigating officer to send the samples beyond 72 hours of seizure of the narcotic substance---Accused was refused bail accordingly.

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

----Ss. 497 & 103--- Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 25---Possession of narcotic---Bail---Witnesses of recovery---Only police officials--- Non-association of private witnesses---Effect---Mere fact that witnesses were police officials could not be considered as a good ground to grant bail or discard evidence of police unless some mala fides appeared on record on part of police officials.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and transportation of narcotic---Bail---Crime Investigation Agency (CIA) police recovering narcotic from possession of accused---Plea of accused that CIA police was not empowered to effect recovery of narcotic substances---Validity---Considering such plea amounted to deeper appreciation of evidence, which was not permissible at bail stage--- Accused was refused bail accordingly.

Shahbaz Ali M. Brohi for Applicants.

Imtiaz Ahmed Shahani, State counsel.

2014 P Cr. L J 1405

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

WAHEED KALHORO and others---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeals Nos.45, 46 and 47 of 2010, decided on 10th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, common intention, act of terrorism---Appreciation of evidence---Complainant and abductee had fully implicated accused persons in the case---Accused were identified by the complainant in identification parade, and abductee had identified accused persons in the court---Evidence of abductee inspired confidence, for the reasons that he had no enmity or motive to falsely implicate accused persons in the said heinous crime---If accused was identified in the court, and evidence inspired confidence, it was sufficient to record conviction against accused---Delay in lodging F.I.R. had fully been explained by the complainant, and delay in holding identification parade, would not be fatal to prosecution case, for the reason that holding of identification parade was not requirement of law, and was merely corroborative piece of evidence---Evidence of complainant and abductee, being consistent on all material particulars, there was no reason to suggest that they had deposed falsely---No major contradictions had been pointed out in evidence and minor contradictions, would not be fatal in the prosecution case---Defence plea raised by accused could be disbelieved for the reasons; that said plea had not been put up to the prosecution witnesses in cross-examination, nor it was specifically raised at the time of recording the statement of accused under S.342, Cr.P.C.---Defence version was not supported by some cogent evidence---Huge and trustworthy evidence was available to connect accused person in the case---No reason existed to disbelieve prosecution evidence, while defence plea was discarded being improbable and an afterthought---Technicalities of procedural nature, lapses on the part of Investigating Officer, and minor contradictions should be overlooked to curb such heinous crimes---Prosecution had proved its case against accused persons, and the Trial Court had rightly believed the prosecution evidence---Judgment of Trial Court being based on sound reasons, there was no occasion to disagree with finding recorded by the Trial Court---Accused having rightly been convicted and sentenced, appeal against judgment of Trial Court, was dismissed, in circumstances.

The State v. Tariq Mehmood 1987 PCr.LJ 2173; Tariq Pervez v. The State 1995 SCMR 1345 and Ghazanfar Ali alias Pappu and others v. The State 2012 SCMR 215 ref.

Ghazanfar Ali alias Pappu and others v. The State 2012 SCMR 215 rel.

Abdul Hafeez Lakho and Manzoor Ahmed Junejo for Appellants.

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

Date of hearing: 6th March, 2013.

2014 P Cr. L J 1430

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD SIDDIQUE---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-408 of 2014, decided on 2nd June, 2014.

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

----S. 497---Sindh Arms Act (V of 2013), Ss. 2(d) & 23(1)(a)---Possession of unlicensed firearm---Bail, grant of---Non-association of private witnesses---Whether .30 bore pistol was a "firearm" in terms of definition of "firearm" provided under S. 2(d) of Sindh Arms Act, 2013---Accused was arrested by police on basis of a tip off and allegedly an unlicensed .30 bore pistol along with live bullets were recovered from his possession---Recovery was effected on basis of a tip off but no effort was made by police to ensure presence of independent witnesses to verify the recovery---When the whole prosecution case hinged upon the evidence of police, which was not independently corroborated, then such evidence needed to be examined with care and utmost caution---Section 2(d) of Sindh Arms Act, 2013 did not specifically mention pistol in the definition of "firearm", therefore question as to whether .30 bore pistol allegedly recovered from accused fell within the definition of "firearm" as provided under the said Act was yet to be determined at trial---Accused did not have any previous criminal record---Investigation of the case was complete and challan had already been submitted---Accused was admitted to bail in circumstances.

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

----Ss. 497(1) & 497(2)---Bail---Offence falling within the prohibitory clause of S. 497(1), Cr.P.C.---Bail could not be withheld as a punishment merely for the reason that offence fell within the ambit of prohibitory clause of S. 497(1), Cr.P.C.---In such cases, where guilt of accused required further inquiry, bail could be granted irrespective of such bar under S. 497(1), Cr.P.C.

Ehsan Muhammad Arain for Applicant.

Mushtaque Ahmed Abbasi DDPP for the State.

Date of hearing: 2nd June, 2014.

2014 P Cr. L J 1454

[Sindh]

Before Aqeel Ahmad Abbasi and Muhammad Junaid Ghaffar, JJ

ZULFIQAR ALI KACHELO alias ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.68, M.As. Nos.2632, 2633 and 1735 of 2014, decided on 28th June, 2014.

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

----Ss. 302, 311 & 338-E---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---Compounding of offence---Imposition of Ta'zir after waiver or compounding of right of Qisas in Qatl-e-amd---Principle---Accused was convicted by Trial Court and sentenced to death penalty---During pendency of appeal compromise was effected between the parties---Validity---None of the ingredients of S.311 or 338-E, P.P.C., were attracted as neither in F.I.R., charge or in entire prosecution evidence, there was even any suggestion by complainant or prosecution regarding commission of offence in brutal or shocking manner---No impediment existed in accepting compromise reached at between parties in respect of offence under S.302, P.P.C. which was compoundable---High Court accepted the compromise and compounded the offence under S.302, P.P.C.---Accused was acquitted in circumstances.

Hussain Bux v. The State PLD 2003 Kar. 127; Almar Shah v. The State 1999 SCMR 2047; Jaffer alias Jafri v. The State 2012 SCMR 606; Muhammad Nawaz v. The State PLD 2014 SC 383; Moulana Nawabul Hassan v. The State 2003 SCMR 658; Ashiq Solangi v. The State PLD 2008 Kar. 420; Sarfaraz v. The State 1971 PCr.LJ 205; Ghulam Shabbir v. The State 2003 SCMR 663; Rana Dil Muhammad v. The State 2004 PCr.LJ 736; Ali Khan v. The State 2006 SCMR 1074; Khalid Zaman v. The State 1996 SCMR 523; Ghulam Qasim v. The State 2011 SCMR 1063; Ghulam Nabi v. The State 2011 SCMR 974 and Azmat and another v. The State PLD 2009 SC 768 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss. 201 & 302---Causing disappearance of evidence of offence, or giving false information to screen of offender and Qatl-e-amd---Suspension of sentence---Accused was convicted and sentenced for causing disappearance of evidence of offence, or giving false information to screen of offender and Qatl-e-amd---During pendency of appeal, on the basis of compromise between the parties, High Court acquitted the accused of the charge of Qatl-e-amd---Accused sought suspension of sentence as offence under S.201, P.P.C. was not compoundable---Validity---When main offence under S.302, P.P.C. had been compromised and accused was acquitted in that offence, in view of a clog regarding compromise in the offence under S.201, P.P.C., which was not compoundable, the matter was required to be heard on merits at the time of regular hearing---High Court looking at rush of work and pendency of large number of old cases did not find it possible within a short period of time to decide the appeal---High Court suspended the sentence awarded to accused under S.201, P.P.C.---Bail was allowed in circumstances.

Mehmood Alam Rizvi and Zakir Leghari for Appellants.

Nasrullah Malik for the Complainant/Legal heirs of deceased Lal Bux.

Saleem Akhtar Buriro, Additional Prosecutor-General Sindh.

Appellants in person are produced in custody by Jail Authorities.

Dates of hearing: 25th, 26th and 27th June, 2014.

2014 P Cr. L J 1496

[Sindh]

Before Salahuddin Panhwar, J

Malik NASEER---Applicant

Versus

WISHNO MAL and another---Respondents

Criminal Revision Application No.S-41 of 2013, decided on 12th July, 2013.

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

----S. 265-F---Defence witnesses, summoning of---Procedure---Complete procedure has been provided in provision of S. 265-F, Cr.P.C. for both prosecution and accused to examine witnesses and to produce documents---Procedure has made it clear that accused may adduce his evidence after conclusion of prosecution evidence---If accused wants Court to summon any person to give evidence or to produce any document, he has to wait till conclusion of prosecution evidence.

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

----S. 540---Material witness, summoning of---Power of Court---Scope---While exercising vested powers, Court can summon, examine or re-examine any person, if just decision of the case so demands, which is the prime object of criminal administration of justice.

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

----S. 540---Penal Code (XLV of 1860), S.324---Attempt to commit Qatl-e-amd---Additional evidence---Summoning of material witness---Object and scope---Accused filed application for summoning of a person as Court witness to prove his plea of alibi---Application filed by accused was dismissed by Trial Court---Validity---Provision of S.540, Cr.P.C. was not meant to allow any of the parties to fill up lacunas of their respective cases but it could only be insisted when exercise of jurisdiction was required for just decision of the case---Jurisdiction and power under S. 540, Cr.P.C. could be exercised where Court, having taken into consideration totality of material placed before it had found any examination of any person or production of any document, essential for just decision of the case which too, where such examination or production could not be done otherwise---High Court declined to interfere in the order passed by Trial Court as the same was legal and proper---Revision was dismissed in circumstances.

Molvi Muhammad Yousif v. The State 2011 YLR 1499; The State v. Muhammad Yaqoob 2001 SCMR 308; Ansar Mehmood v. Abdul Khaliq 2011 SCMR 713; Shah Zain Bugti v. The State PLD 2013 SC 160 and Muhammad Ashraf v. The State PLD 2011 FSC 114 distinguished.

Sahib Khan v. The State 2008 SCMR 1049; Muhammad Aslam v. The State 2003 SCMR 862 and Rashid Minhas v. Muhammad Fayaz and others 2012 PCr.LJ 816 ref.

(d) Interpretation of statutes---

----Every word of legislature has to be given its due meaning.

(e) Precedent---

----Stare decisis, principle of---Scope---Legal principle settled in series of decisions, which come within the scope of stare decisis or having binding effect has to be followed.

Ishrat Ali Lohar for Applicant.

Hidayatullah A. Abbasi for Respondent No.1.

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

Date of hearing: 12th July, 2013.

2014 P Cr. L J 1519

[Sindh]

Before Aftab Ahmed Gorar, J

ALLAH DITTA and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.248 of 2009 and 102 of 2010, decided on 31st January, 2013.

Penal Code (XLV of 1860)---

----Ss. 302, 364-A, 201 & 34---Qatl-e-amd, kidnapping or abducting a person under age of ten, causing disappearance of evidence and common intention---Appreciation of evidence---Prosecution witnesses had implicated both accused in the commission of alleged offence---Even real sister of one of accused persons had involved him in the commission of such a heinous offence---Circumstantial evidence had also supported the prosecution case---Ocular account of the complainant and his wife, was corroborated by prosecution witness who was their neighbour---All the witnesses were unanimous on the point that both accused had taken the abductee/child to market for purchasing certain items---Accused persons had made confessional statement which was recorded by Judicial Magistrate, defence did not put any question regarding any irregularity in the process of recording the confessional statement of accused---Said confessional statement appeared to be voluntary, which had corroborated the prosecution case---Prosecution having succeeded in proving its case beyond reasonable doubt, accused had rightly been convicted and sentenced---Impugned judgment could not be interfered with by High Court, in circumstances.

1987 PCr.LJ 676; 1997 PCr.LJ 1; 1993 PCr.LJ 251; 2004 PCr.LJ 30; 1995 PCr.LJ 339; 2004 YLR 206; 2003 YLR 1327; PLD 1998 SC 21; 2002 PCr.LJ 1463; 2000 PCr.LJ 1786; 1973 SCMR 26; 1968 SCMR 18; 2003 YLR 1309; PLJ 1997 SC 352(sic.); PLD 2004 SC 663; PLJ 1870 SC 258(sic.) and 1973 SCMR 12 distinguished.

Shoakat Ali Phull for Appellants.

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

Date of hearing: 10th December, 2012.

2014 P Cr. L J 1548

[Sindh]

Before Hasan Feroz, J

MUHAMMAD NAVEED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-895 of 2013, decided on 30th April, 2014.

(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---Non-attribution of any role in the murder---Accused was (only) shown to be present at the spot along with the co-accused, who fired a single shot killing the deceased---Deceased was said to have caught hold of the co-accused, who allegedly fired in order to get himself released---Reasonable grounds existed to suggest that accused has not shared the (intention of) commission of murder--- Accused could not be refused bail on the basis of vicarious liability unless he was shown through positive evidence to have played a role in the murder---Case was on of further inquiry---Accused was granted bail in circumstances.

2010 SCMR 1178 and 2011 SCMR 902 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 34---Bail---Common intention---Issue of further inquiry---At bail stage issue of common intention was normally one of further inquiry unless there was other compelling reasons/circumstances to reach a different conclusion i.e. by way of other pieces of evidence, which could definitely connect the accused with the crime enquiry.

2010 SCMR 1178 rel.

Nisar Ahmed Durrani for Applicant.

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

Date of hearing: 8th April, 2014.

2014 P Cr. L J 1598

[Sindh]

Before Naimatullah Phulpoto, J

RAHIM BUX---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-183 of 2012, decided on 11th April, 2014.

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

----Ss. 561-A, 4(1), 156 & 170---Penal Code (XLV of 1860), Ss.392 & 34---Robbery, common intention---Investigation---Petition for setting aside of order under S.561-A, Cr.P.C.---Investigating Officer, after investigation, concluded that complainant had lodged a false F.I.R. and submitted such report before Magistrate concerned, who concurred with the opinion of Investigating Officer vide impugned order---Complainant had nominated accused persons, in the F.I.R., and the eye-witnesses of the incident had implicated accused in their statements under S.161, Cr.P.C.---Prima facie, a case against accused was established which required trial and appreciation of evidence---Investigating Officer should not have declared accused innocent by taking into consideration the statements of unconcerned/interested persons---Trial Court was to believe or disbelieve the prosecution witnesses---Sufficient evidence being available against accused persons, Magistrate was required under the law to take the cognizance of the offence in terms of S.170, Cr.P.C.---Impugned order which was arbitrary and was an abuse of process of court; was not sustainable under the law and was set aside---Investigating Officer was directed to submit a fresh report before the Magistrate who would pass an appropriate order in the matter, strictly in accordance with law.

Awal Khan v. Superintendent of Police 1989 PCr.LJ 909 ref.

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

----S. 561-A---Inherent powers of High Court---Scope---Section 561-A, Cr.P.C. had conferred upon High Court inherent powers to make such orders as could be necessary to give effect to any order under the Cr.P.C.; or to prevent abuse of process of any court; or otherwise to secure the ends of justice---Said powers were very wide, and could be exercised by the High Court at any time.

State v. Asif Ali Zardari and another 1994 SCMR 798 rel.

Habibullah G. Ghouri for Applicant/Complainant.

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

Altaf Hussain Surahio for Respondents Nos.2 and 3.

2014 P Cr. L J 1618

[Sindh]

Before Abdul Maalik Gaddi, J

RAHEEM BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-324 of 2013, decided on 10th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possession of unlicensed firearm---Bail, grant of---Further inquiry---Weapon allegedly recovered from accused was not sealed at the spot, therefore, it was not certain whether the weapon sent to the ballistic expert was the same or not---Police apprehended accused at a public place and that too on basis of advance spy information but no effort was made to associate independent private persons as witnesses---All prosecution witnesses were police officials---Case had already been challaned, and accused was no more required for further investigation, thus there was no apprehension of accused tampering with prosecution evidence---Record did not show that accused was a previous convict or had been arrested in a case similar to the present one---Case required further probe into guilt of accused---Accused was admitted to bail accordingly.

Shahbaz Ali M. Brohi for Applicant.

Qazi Muhammad Bux, State Counsel.

2014 P Cr. L J 1638

[Sindh]

Before Aamir Raza Naqvi, J

Mst. SHAMIM alias MARIYUM---Petitioner

Versus

D.I.-G. EAST ZONE and 3 others---Respondents

Constitutional Petition No.686 and C.M.A. No.4150 of 2014, decided on 1st July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 75, 87 & 88---Constitution of Pakistan, Art. 199---Constitutional petition---Absconding accused---Proclamation for person absconding---Attachment of property of person absconding---Keeping case on dormant file---Scope---Accused persons had absconded in the present case---After challan had been submitted against them, Trial Court refused to issue their warrants of arrest and did not adopt the procedure as provided under Ss. 87 & 88, Cr.P.C.---Trial Court also put the case on dormant file---Legality---Trial Court should exercise powers available to it under Ss. 75, 87 & 88, Cr.P.C., and if proceedings under the said provisions failed, only then should the case be kept on dormant file---Trial Court, in the present case, ignored the powers available to it under Ss. 87 & 88, Cr.P.C., including attachment of properties of accused persons---High Court directed that proper efforts should be made to arrest accused persons, and in case of non-compliance by the police, the (Trial) Court may write to the superior police officials for getting issued necessary directions---Constitutional petition was disposed of accordingly.

PLD 2001 Kar. 211 distinguished.

Gul Hassan Hub for Petitioner.

Ms. Merzia Begum, A.A.-G.

Saleem Akhtar Buriro, Additional P.-G.

2014 P Cr. L J 1659

[Sindh]

Before Farooq Ali Channa, J

SARFARAZ AHMED---Appellant

Versus

Mst. NAHEED---Respondent

Criminal Acquittal Appeal No.316 of 2013, decided on 21st March, 2014.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Criminal Procedure Code (V of 1898), Ss. 417(2-A) & 265-K---Illegal dispossession---Appeal against acquittal---Trial Court not only dismissed application by complainant under S. 7 of Illegal Dispossession Act, 2005 for grant of interim possession of property in dispute, but also acquitted accused under S. 265-K, Cr.P.C.---Both said orders had been passed by same Judge on the basis of same evidence, and the police report and the documents brought on record during preliminary enquiry---Said findings were inconsistent and contradictory to each other---Neither parties were cross-examined, nor they had produced any further documents or evidence, which could justify the change in the opinion of the court---On the same set of allegations, statement, police report and the material, which was available at the time when the Trial Court took cognizance and passed the order whereby process was issued against accused---Such powers should not be exercised as to stifle the prosecution or to pre-empt the legal proceedings, and to avoid decision of the case on merits; after examining the evidence produced by both the parties---Trial Court had acted in haste while passing order of acquittal in the matter---Proper course would have been to record the evidence subject to cross-examination of both the parties, and then to ascertain the truth or falseness of the charge---Impugned order was set aside, and case was remanded to the Trial Court, with the direction to record the evidence and thereafter decide the case strictly on merits.

Muhammad Shoaib (Abidi) for Appellant.

Respondent No.1 in person.

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

2014 P Cr. L J 1673

[Sindh]

Before Syed Muhammad Farooq Shah and Shahnawaz Tariq, JJ

RAZI KHAN ALMANI---Applicant

Versus

JUDGE, ANTI-TERRORISM COURT, HYDERABAD---Respondent

Criminal Revision Application No.D-58 of 2014, decided on 17th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 114, 109 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-E--- Act of terrorism, qatl-e-amd, abetment, common intention---Remand of case---Jurisdiction of Anti-Terrorism Court---Applicant/Investigating Officer requested for grant of further remand of accused in Police custody, but Judge Anti-Terrorism Court, instead of granting remand of accused in Police Custody, had granted remand in judicial custody for 7 days---Applicant had filed revision against said order contending that impugned order would affect the process of investigation of the case for the reason that more evidence was to be collected with the cooperation and disclosure of accused and statement of his daughter---Allegation was that court had shown special generosity to accused mainly on the reason that accused being a Sessions Judge, court had paid accused due respect, though he had not complained bodily or mental torture from the hands of Police---Impugned order, though neither could be challenged invoking revisional jurisdiction, nor jurisdiction under S.561-A, Cr.P.C., but it was an appropriate case where extraordinary jurisdiction could be invoked under Art. 199 of Constitution---High Court converted revision application as constitutional petition and held that remand could be extended, if the court was satisfied that no bodily harm had been or would be caused to accused; provided that total period of such remand would not exceed ninety days---Trial Court had failed to appreciate the request made by applicant/Investigating Officer for grant of further Police remand---Impugned remand order, granting remand of accused in judicial custody, instead of Police custody was illegal, arbitrary and against law; which would affect the smooth investigation of crime---Impugned order was set aside, with the direction to the Trial Court to decide afresh the request of applicant on merits and in accordance with law after affording fair opportunity of hearing to both sides.

Muhammad Imran alias Sawan v. Special Judge, Anti-Terrorism Court, Multan and another 2007 YLR 155; Allah Nawaz and another v. The State 2010 MLD 1412 and Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195 ref.

Pir Asadullah Shah Rashdi and others for Applicant.

Raja Mir Muhammad for Respondent.

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

Date of hearing: 17th March, 2014.

2014 P Cr. L J 1689

[Sindh]

Before Aftab Ahmed Gorar, J

NABIDAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-1 of 2014, decided on 21st March, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Benefit of doubt---Police arrested accused from thickly populated area, but despite having sufficient time, the Investigating Officer did not bother to take any effort to associate any independent person from locality to attest the Mashirnama of recovery and arrest of accused; there was clear violation of S.103, Cr.P.C.---Prudent mind would not accept that any person after three days of committing a murder would not be freely roaming in the locality along with TT pistol, which had made the arrest and recovery of crime weapon doubtful---T.T. pistol recovered from accused was sent to Chemical Examiner along with 5 empties recovered from the place of wardat after delay of six months---Such delay had created doubt in the recovery of pistol from accused---Report of Examiner was received in positive which had been made the sole evidence against accused; and the only basis for recording conviction and sentence by the Trial Court---None of the eye-witnesses had implicated accused, but they had rather denied the very occurrence as disclosed in the F.I.R.---Sole evidence of report of Chemical Examiner was not sufficient to warrant conviction, as it had only corroboratory value---In absence of any other evidence connecting accused with the commission of crime, report of Chemical Examiner could not be held the sole basis for recording conviction of accused---Prosecution case being highly doubtful, accused was entitled to benefit of doubt as prosecution had failed to bring home his guilt beyond shadow of reasonable doubt---Impugned judgment was set aside, accused was acquitted and was released, in circumstances.

Ali Sher and others v. The State 2008 SCMR 707 ref.

Asif Ali Abdul Razzak Soomro for Appellant.

Imtiaz Ali Jalbani, State counsel for the State.

Date of hearing: 28th February, 2014.

2014 P Cr. L J 1698

[Sindh]

Before Ghulam Sarwar Korai and Naimatullah Pholpoto, JJ

KHADIM HUSSAIN PALH---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No.560 of 2013, decided on 9th September, 2013.

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

----S. 497---General Clauses Act (X of 1897), S. 26---Constitution of Pakistan, Art. 13---Penal Code (XLV of 1860), Ss. 420 & 489-F---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque, criminal misconduct---Bail, refusal of---Simultaneous prosecution for separate F.I.Rs. arising from the same transaction---Scope---Double jeopardy, rule of---Scope---Accused, who was serving in a senior position at a bank, allegedly persuaded complainant to invest certain amount in the bank in return for better (than normal) profit---Accused received said amount from complainant and issued receipts to him on letter pad of the bank under his signature---Subsequently accused could not fulfil his commitment and in return issued bogus cheques from his account to the complainant, which were dishonoured on presentation due to insufficient funds---(Present) F.I.R. was lodged against accused under S. 420, P.P.C. read with S. 5(2) of Prevention of Corruption Act, 1947---Separate F.I.R. under S. 489-F, P.P.C. was also lodged against the accused---Pleas of accused were that separate F.I.Rs. were registered against him despite the fact that offences were committed in the same transaction; that law required only one trial for offences arising out of the same transaction; and that separate civil proceedings in the form of recovery suit had also been initiated by complainant in regard to the offence---Validity---Under S.26 of General Clauses Act, 1897 there was no bar on simultaneous prosecution; what was prohibited was duplicate punishment and not the trial---Mere lodging of F.I.Rs. would not attract the rule of double jeopardy--- Facts of both F.I.Rs. were entirely different---Present criminal proceedings were also entirely different from the civil proceedings initiated by the complainant (for recovery of amount)---Accused absconded without explanation and deliberately avoided joining the investigation and as such lost some of his normal rights guaranteed by the procedural as well as substantive law---Sufficient material was available on record to connect accused with the commission of the offence--- Bail application of accused was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 154---Double jeopardy, rule of---Scope---Lodging of multiple F.I.Rs.---Mere lodging of F.I.Rs. would not attract the rule of double jeopardy---Concept of double jeopardy was (only) attracted where accused had been tried for the offence charged in a competent court and there was a judgment of conviction or acquittal.

Muhammad Ashraf and others v. The State 1995 SCMR 626 and Abdul Hafeez v. Additional District Judge-VII, South Karachi and 2 others PLD 2009 Kar. 350 rel.

Shahab Sarki for Applicant.

Muhammad Ashraf Khan Mughal, Assistant Prosecutor-General Sindh for the State.

Date of hearing: 3rd September, 2013.

2014 P Cr. L J 1707

[Sindh]

Before Hasan Feroz, J

MUHAMMAD BUX alias PAPOO SHAR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-180 of 2013, decided on 30th April, 2014.

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

----S. 13(d)---Criminal Procedure Code (V of 1898), Ss. 439 & 537---Possessing unlicensed arms---Reappraisal of evidence---Trial Court as well as Appellate Court had failed to minutely appraise the evidence recorded before the Trial Court by prosecution witnesses---Revisional court had jurisdiction to correct the error resulting from non-reading, misreading of evidence, or where the court below failed to exercise jurisdiction vested in them---High Court, while sitting in revision had the jurisdiction to even assess and examine the evidence adduced at trial---Procedural error could be rectified by High Court under S.537, Cr.P.C.---Basic duty of the court was to exercise its powers and authority when facts calling for its exercise were brought to its notice---Revisional court, could always exercise its power to correct manifest illegality or to prevent gross miscarriage of justice---Sufficient doubt existed in the present case, which went to the very root of the case---Accused was already known to the complainant, but no such mention was shown in the F.I.R.---Evidence recorded in the case was contradictory; fabrication of story seemed to be latent and patent apparently---Involvement of accused was cooked up story; and at trial, effort was made to support such story which could not stand on its foot; as the prosecution evidence was not convincing, and was not free from reasonable doubts---Despite gathering of number of persons at the place of incident and arrest, mashirs were procured by the complainant from his relations belonging to his village---No points were framed for disposal of the appeal by the appellate court below---Decision in appeal was a slipshod method adopted by the Appellate Court below, which in no way could be appreciated---Courts below had failed to attach importance to material aspects, which had resulted in serious miscarriage of justice---Impugned judgments passed by two courts below were set aside, and accused was set at liberty, in circumstances.

Nur Elahi v. The State and 2 others PLD 1966 SC 708; Pahalwan Machhi v. Abdul Wahid and another 1991 PCr.LJ 728; Patasho v. The State 1997 MLD 1689; Naveed and another v. The State 2014 PCr.LJ 250; PLD 1982 SC(AJ&K) 13; PLD 1983 SC 73; PLD 1981 SC 352; 2005 YLR 2325; PLD 1999 Kar. 144; 1993 PCr.LJ 1463; 1995 PCr.LJ 1835; 2000 SCMR 735 and 1997 MLD 1689 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution was to establish its case beyond any shadow of reasonable doubt---For extending benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubt; if there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of accused, then accused was entitled to benefit of doubt, not as a matter of grace and concession, but as a matter of right.

2013 YLR 2600; Rehmatullah and others v. The State 2005 PCr.LJ 60 and Rabnawaz v. The State 2000 PCr.LJ 1036 ref.

Ms. Aliya Sahar Qaimkhani for Applicant.

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

Date of hearing: 23rd April, 2014.

2014 P Cr. L J 1719

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD AMEEN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1108 of 2013, decided on 11th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-A(ii), 337-H(2), 337-F(i), 147, 148 & 504---Attempt to commit qatl-e-amd, causing Shajjah-i-Mudihah, rash or negligent act, causing Damiyah, rioting, rioting armed with deadly weapon, intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---Principles---Mere fact that an offence did not fall within prohibitory clause of S.497(1), Cr.P.C., would not mean that it had become a bailable offence---Discretion to grant or refuse bail, to an accused involved in an offence, not falling within the prohibitory clause, lay with the court, which had to decide such question by tentatively probing the material made available to it---In appropriate cases, discretion could be exercised in favour of accused, where sufficient grounds existed for further inquiry into the guilt of accused---In the present case, accused, as per F.I.R. caused sharp side hatchet blow to prosecution witness, whereas in the medical certificate, the injury to that witness, was said to have been caused with hard and blunt side weapon---Such discrepancy between the medical and oral account of the case, appeared to be inexplicable, and would bring the case against accused within the ambit of further inquiry---Accused was not alleged to have repeated the blow to injured prosecution witness, which prima facie, called for further inquiry---Accused was on the same footing with that of co-accused, who was granted bail---Rule of consistency, was applicable in the case---Injury allegedly caused by accused, was punishable for five years, and did not fall within the prohibitory clause of S.497(1), Cr.P.C.---In such cases, the grant of bail to accused was an established rule, unless some extraordinary circumstances were available to justify an exception---Grant of bail to accused, did not mean his acquittal, but it was only a change of custody held by the Government Agencies on behalf of the court to the person who stood surety for accused---Accused who was entitled to the concession of bail, was admitted to bail, in circumstances.

2009 YLR 2299; 2009 MLD 21; 1998 SCMR 500; 2004 SCMR 89; 2012 YLR 705; 2001 YLR 2921; 2004 YLR 400; 2003 SCMR 573 and 2008 SCMR 807 ref.

Amjad Ali Sahito for Applicant.

Altaf Hussain Khokhar for the Complainant.

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

2014 P Cr. L J 1727

[Sindh]

Before Aftab Ahmed Gorar, J

MIR MUHAMMAD---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Acquittal Appeal No.544 of 2010, decided on 19th November, 2012.

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

----Ss. 302, 147, 148, 149 & 114---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Appeal against acquittal---Appreciation of evidence---Contradictions in medical and ocular evidence and in evidence of investigation officer and prosecution witness---Delay in sending blood-stained earth and clothes of deceased to Chemical Examiner---Effect---Accused persons allegedly went to the house of complainant party while armed, whereafter co-accused directly fired at the deceased and killed him---Trial Court acquitted accused persons---Validity---Contradictions existed in ocular testimony of witnesses regarding passage of time between receiving injuries and death of deceased---Although at the time of incident distance between accused persons and complainant party was only a few feet but despite such fact not a single scratch was received by anyone except the deceased---According to the evidence of investigation officer blood-stained earth and clothes were sent to Chemical Examiner after a delay of about five months, which could be fatal to the prosecution case---Investigation officer also stated in his evidence that he did not recover any empty pallets from the place of incident---One of the prosecution witnesses stated in his cross-examination that his statement was recorded by the police at an Otaq, whereas investigation officer stated in his cross-examination that prosecution witnesses were produced by the complainant at the police station---Trial Court was right in acquitting the accused persons in circumstances---Appeal against acquittal of accused persons was dismissed.

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

----Ss. 302, 147, 148, 149 & 114---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Appeal against acquittal---Appreciation of evidence---Direct unanimous evidence of all prosecution witnesses---Medical evidence corroborating evidence of witnesses---Effect---Accused and co-accused persons allegedly went to the house of complainant party while armed, whereafter accused directly fired at the deceased and killed him---Trial Court acquitted the accused---Validity---All witnesses were in full agreement on the point that accused directly fired at the deceased, and also that fire made by accused hit the deceased on his forehead---Medical evidence established that deceased received lacerated and holy-type wound over his forehead---Accused was not entitled to be acquitted as there was direct unanimous evidence against him---Appeal against acquittal of accused was accepted in circumstances.

(c) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt in the prosecution case had to go to the accused as it was the duty of the prosecution to prove its case beyond shadow of reasonable doubt.

(d) 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.

(e) 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.

Ghulam Rasool Mangi for Appellant.

Shabbir Ahmed Kambar for Respondents Nos.2 to 5.

Abdul Rahman Kolachi for the State.

Date of hearing: 14th November, 2012.

2014 P Cr. L J 1738

[Sindh]

Before Riazat Ali Sahar, J

NIAZ HUSSAIN and 4 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-54 of 2009, decided on 22nd November, 2013.

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

----S. 154---Second F.I.R., registration of---Scope---Second F.I.R. could be registered---Trial Court could not be said to have passed illegal order by directing registration of second F.I.R. of the same version.

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

----Ss. 154, 156, 173 & 190(2)---Sending case by Magistrate, exclusively triable by the Court of Session---Magistrate had to send case, exclusively triable by the Court of Session, after making enquiry to such effect, that he had arrived at the conclusion that case was exclusively triable by the Court of Session, and that too after taking cognizance--- If case was the one which Magistrate found that cognizance should not be taken, same should be disposed of in any three classes, i.e. 'A', 'B', and 'C'---Magistrate, instead of sending the case to the Court of Session, was required to dispose of same, because ipse dixit of Police, was not binding on Magistrate or Court---Magistrate was required to apply his judicial mind, while deciding under S.173, Cr.P.C. whether or not to take cognizance.

Wajid Ali Khan Durrani and others v. Government of Sindh and others 2001 SCMR 1556; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Muhammad Abbas v. District Magistrate, Bahawalnagar and 5 others 1996 MLD 16; Shehnaz Begum v. Honourable Judges of the High Court Sindh and Balochistan PLD 1971 SC 677; Mian Munir Ahmed v. The State 1985 SCMR 257; Bahadur and another v. The State PLD 1985 SC 62; Mehar Khan v. Yakoob Khan and another 1981 SCMR 267 and Syed Muhammad Awais Shibli v. The State 1995 MLD 601 ref.

Wajid Ali Khan Durrani and others v. Government of Sindh and others 2001 SCMR 1556; Mst. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 and Mst. Syeda Afshan v. Syed Farukh Ali and 3 others PLD 2013 Kar. 423 rel.

Syed Mushtaque Hussain Shah for Applicants.

Abdul Baqi Jan Kakar for Private Respondents.

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

Date of hearing: 30th September, 2013.

2014 P Cr. L J 1761

[Sindh]

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

MUJEEBUR REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-63 and M.A. No. 1663 of 2009, decided on 15th January, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Counsel for accused, without arguing the appeal on merits, requested that he would not press appeal against conviction of accused, if the sentence awarded to accused was reduced to the period which he had already undergone---Accused at the time of commission of alleged offence was juvenile and remained in jail including remissions for a long time---Accused being of tender age at the time of commission of the offence, was tried under provisions of Juvenile Justice System Ordinance, 2000---Quantum of sentence was inflicted to accused in the light of huge quantity of contraband material recovered from the truck, which accused was allegedly driving---Punishment must be purposeful; there were three purposes of punishment i.e. retributive; preventive; and reformative---Accused, who had not criminal record, at the time of commission of offence was a young boy, had indulged himself in the crime under some misguidance and temptation and had suffered adequate punishment---While maintaining the conviction awarded to accused by the Trial Court, his sentence was altered to the imprisonment which he had already undergone.

Ghulam Murtaza v. The State PLD 2009 Lah. 362; Ameer Zeb v. The State PLD 2012 SC 380 and Niazuddin v. The State 2007 SCMR 206 rel.

Sher Khan v. The State 2013 MLD 1512 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Imtiaz Ali Jalbani, Assistant Prosecutor-General for the State.

Date of hearing: 15th January, 2014.

2014 P Cr. L J 1767

[Sindh]

Before Muhammad Ali Mazhar, J

SHAH JAHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1413 of 2014, decided on 9th September, 2014.

(a) Jurisprudence---

----Classification of law---Harsh law, framing of---Object---At times certain laws are considered draconian but sometimes laws are made as a need of time to safeguard larger public interest for showing and exposing deterrence so that increasing rate of crimes menacing evil in society may be prevented which is found more dangerous than cancerous disease.

(b) Sindh Arms Act (V of 2013)---

----S. 2(d)---"Firearm"---Connotation---Firearm includes any weapon designed to discharge a projectile or projectiles of any kind by action of gunpowder or any explosive or other firearm of energy---Pistol is also a firearm, no matter it is also included in the definition of "arms" with other list of weapons.

(c) Sindh Arms Act (V of 2013)---

----S. 34---Criminal Procedure Code (V of 1898), S. 103---Recovery of weapon---Evidence of police official---Scope---Compliance of S.103, Cr.P.C. is not mandatory and police officer can also be a witness of search and recovery including person present on spot.

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

----S. 497---Sindh Arms Act (V of 2013), S. 23(1)(a)---Possessing firearm---Bail, refusal of---Accused was arrested on spot as he was carrying .30 bore pistol with loaded magazine containing two live cartridges and one live bullet loaded in chamber---Weapon was recovered in presence of private witness, who was robbed by accused for which separate F.I.R. was lodged---Effect---Ample material was available on record to connect accused with crime in question---Bail was declined in circumstances.

Ayaz Ali v. State PLD 2014 Kar. 282; Inayat Ali v. State 2014 SBLR 626; Black's Law Dictionary, Forensic Science in Criminal Investigation and Trials Fourth Edition by B.R. Sharma; Archbold 2014; Chambers 21st Century Dictionary and Firearms in Criminal Investigation and Trials, Fourth Edition by B.R. Sharma ref.

Muhammad Naeem Memon for Applicant.

Saleem Akhtar, Additional Prosecutor-General for the State.

Date of hearing: 20th August, 2014.

2014 P Cr. L J 1783

[Sindh]

Before Ahmed Ali M. Shaikh and Farooq Ali Channa, JJ

VEJAY KUMAR and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. D-121 of 2013, decided on 19th November, 2013.

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

----Ss. 6(1) & 23---Penal Code (XLV of 1860), Ss. 302 & 365-A---Criminal Procedure Code (V of 1898), Ss. 435, 439 & 561-A---Qatl-e-amd and kidnapping for ransom---Act of terrorism---Transfer of case---Minor boy of 6 - 7 years was kidnapped for ransom, his mouth was tapped and was put in jute bag, to keep him silent in order to avoid attention of people towards them, which resulted in his death and subsequently accused threw his dead body in water channel---Application of accused for transfer of case to Court of ordinary jurisdiction was dismissed by Anti-Terrorism Court---Validity---Such barbarity had created fear, panic and sense of insecurity among people of vicinity---Act of accused persons squarely fell within the ambit of "terrorism" attracting jurisdiction of Anti-Terrorism Court in terms of S.6(1) of Anti-Terrorism Act, 1997---Trial Court had correctly assumed jurisdiction declining transfer of case to Court of ordinary jurisdiction---Order passed by Trial Court was not perverse, nor suffering from any infirmity and it did not require interference by High Court in exercise of revisional jurisdiction under Ss. 435 & 439, Cr.P.C. or inherent power under S. 561-A, Cr.P.C., which could only be invoked in exceptional cased of extraordinary nature and not in each and every case---Revision was dismissed in circumstances.

Tarique Hakeem v. The State and 12 others 2011 YLR 19; Raza Khan v. The State and 2 others PLD 2009 Kar. 7; Mirza Shoukat v. Shahid Jamil PLD 2005 SC 530 and Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11 ref.

Ali Ahmed Palh for Applicant.

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

Date of hearing: 19th November, 2013.

2014 P Cr. L J 1791

[Sindh]

Before Muhammad Ali Mazhar, J

ABBAS ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1476 of 2013, decided on 9th September, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 394, 397 & 34---Qatl-e-amd, robbery and common intention---Bail, grant of---Vicarious liability---Plea raised by accused was that he did not fire upon the deceased---Validity---Whether accused had fired upon deceased or not would make no difference, but what actually mattered was substance of charge and offence---Presence of accused was not denied at place of incident as he was arrested from there---Accused and co-accused both in pre-planned manner and pre-concert committed offence in which one innocent person lost his life---Existence of common intention amongst participants in crime was essential element for applicant of S.34, P.P.C.---Acts of several persons charged with commission of offence jointly must not necessarily be the same or identically similar---Acts could be different in character but must have been actuated by one and the same common intention in order to attract provision of S.34, P.P.C.---Accused shared common intention with co-accused in commission of crime of murder and robbery---Bail was dismissed in circumstances.

Mulo Ahmed v. The State 2011 MLD 1171 rel.

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

----S. 497---Bail---Vicarious liability, principle of---Scope---Such principle can be looked into even at bail stage if from F.I.R., accused appears to have acted in pre-concert or shared community of intention with his co-accused.

Abdus Sami for Applicant.

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

Complainant in person.

Date of hearing: 26th August, 2014.

2014 P Cr. L J 1799

[Sindh]

Before Nadeem Akhtar, J

SALEEMULLAH KHAN---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.27 of 2013, heard on 2nd July, 2014.

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

----S. 514---Surety bond, forfeiture of---Principles---Where there was nothing on record to suggest that the surety had any other consideration except the benevolence of the accused, or stood surety for the accused out of charitable motive and not to derive any monetary benefit and there was no ulterior motive or connivance on his part, the surety should not be penalized heavily or treated harshly in case of non-appearance of the accused---While dealing with the surety, the principle of undue leniency and undue severity as well as the circumstances of the case must be kept in mind by the court---Sureties of accused persons involved in heinous crimes or involving capital punishment did not deserve any leniency while considering reduction of their bonds, but sureties of accused involved in minor offences with minor punishments and penalties should be treated leniently, and the entire amount of surety bond in such cases should not be forfeited.

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

----S. 514---Surety bond, forfeiture of---Fine, imposition of---Grounds for forfeiture to be recorded---For non-compliance of the surety bond, the surety had to be forfeited first and then fine had to be imposed upon the surety keeping in view the facts and circumstances of the case; and, before passing such order, the court must not only satisfy itself that the accused had violated the terms and conditions of the bond, but the grounds for forfeiture of the surety must also be recorded.

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

----S. 514---Surety bond, forfeiture of---Standing surety for accused as an act of benevolence---No ulterior motive or connivance on part of surety---Forfeiture of entire surety amount---Unreasonable and harsh---Applicant furnished a surety of Rs. 200,000 on behalf of accused, who was granted bail---Accused was sentenced to two months imprisonment along with a fine of Rs. 10,000, but he could not be taken into custody as he absconded---Applicant was directed to pay the entire amount of surety furnished by him i.e. Rs. 200,000---Validity---Accused was sentenced only to two months imprisonment with a fine of Rs. 10,000--- Imposing penalty on the applicant for the entire surety amount i.e. Rs.200,000 was unreasonable and harsh in such circumstances---Record suggested that there was no ulterior motive or connivance on part of applicant, or any other consideration such as monetary benefit---Only consideration of applicant was benevolence of the accused---High Court reduced the penalty imposed on applicant to Rs.10,000, which was equivalent to the fine imposed by Trial Court---Application was disposed of accordingly.

Ateeq-ur-Rehman for Applicant.

Azizullah Burero, D.A.-G. for the State.

Date of hearing: 2nd July, 2014.

2014 P Cr. L J 1808

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

IRFAN---Appellant

Versus

The STATE---Respondent

Spl. Criminal A. T. Jail Appeal No.45 of 2013, decided on 3rd December, 2013.

Penal Code (XLV of 1860)---

----Ss. 384, 385 & 386---Anti-Terrorism Act (XXVII of 1997), S.7---Extortion by putting a person in fear of death or grievous hurt and terrorism---Appreciation of evidence---Bhatta, receiving of---Proof---Accused was convicted by Trial Court and sentenced to imprisonment for seven years---Validity---Prosecution specifically made a cell phone to be that of absconding accused on which complainant either himself contacted or he was phoned from such cell phone number but not a single proof in shape of data of such SIM number or that of complainant had been produced to strengthen claim of demand of money---Investigating officer did not make any effort to inquire about the person on whose name such SIM was issued---Accused was not found possessing any phone at the time of his arrest---Prosecution failed to prove that alleged chit of Bhatta was given by accused; amount of Bhatta was given to accused; alleged SIM was in the name of accused; it was accused with whom complainant contacted; and accused ever demanded any Bhatta from complainant---In absence of such factors it would not be safe to hold that prosecution had proved the charge---Prosecution could not succeed in establishing charge against accused who per his statement under S. 342, Cr.P.C. was only 15 years of age---No conviction could sustain on such type of evidence where direct evidence was not reasonable, confidence inspiring and natural---High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Afzal v. The State 2009 SCMR 436 rel.

Ajab Khan Khattak for Appellant.

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

Date of hearing: 3rd December, 2013.

2014 PCr. LJ 1

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD ASIF NAWAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE MULTAN and 2 others---Respondents

Writ Petition No.10707 of 2012, decided on 16th May, 2013.

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

----S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20 (4)---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition---Re-payment of finance---Dishonouring of cheques---Petitioner obtained loan from bank and for its return issued cheque which was dishonoured on presentation---Ex-Officio Justice of Peace, on application filed by complainant bank, directed police to record statement of complainant and proceed in accordance with law---Grievance of petitioner was that no criminal case could be registered against him---Validity---Jurisdiction was only with Banking Court established under Financial Institutions (Recovery of Finances) Ordinance, 2001, and not before any other court until and unless the same was provided by law, by which financial institution was established---If Legislature had any intention, it could have, at the very beginning formulate or afterwards could amend Financial Institutions (Recovery of Finances) Ordinance, 2001, in such a manner so as to bring the offence within definition of "cognizable" offence---When amendment was not made in Financial Institutions (Recovery of Finances) Ordinance, 2001, Legislators explicitly made their intention clear that with regard to matters between financial institutions and their customers, therefore, such enactment would hold the field and S.489-F, P.P.C. would be applicable to all other persons in general except those covered by Financial Institutions (Recovery of Finances) Ordinance, 2001---Purpose by not amending Financial Institutions (Recovery of Finances) Ordinance, 2001, was that normally in any case of loan from financial institution, loans were protected by mortgage, warranties and covenants with regard to ownership, mortgage, pledge, hypothecation or assignment of or other charges on assets or properties and financial institution could recover the amount by adopting appropriate process under any of such modes---High Court set aside order passed by Ex-Officio Justice of Peace---Petition was allowed accordingly.

Abid Mahmood Malik v. Station House Officer, Police Station Margalla and others 2013 CLD 508 and Muhammad Iqbal v. Station House Officer, Police Station Hajipura, Sialkot and 2 others PLD 2009 Lah. 541 rel.

Abdul Rauf Chaudhry and 2 others v. The State and 2 others 2013 CLD 738 distinguished.

(b) Interpretation of statutes---

----Special and general law---Applicability---Where there are two acts, one of which is special and particular and the other general, which if standing alone, would include the same matter---Conflict with special act, the special law must prevail since it evinces legislative intent more clearly than that of a general statute.

(c) Words and phrases---

----"General" and "special laws"---Distinction---General law as a universal rule affecting entire community and special law is one relating to particular persons or things of a class.

Javed Iqbal Bhatti for Petitioner.

Mubashir Latif Gill, Assistant Advocate-General with Muhammad Arif, ASI.

Syed Wasim Haider for Respondent No.3.

2014 P Cr. L J 39

[Lahore]

Before Shahid Bilal Hassan, J

KHAYYAM BILAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1063-B/BWP of 2013, decided on 3rd September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, grant of---Case of civil nature---Deeper appreciation of evidence---Accused contended that matter between the parties was of rendition of accounts and of civil nature---Accused had allegedly returned a portion of amount to complainant and Trial Court would decide about application of S.406, P.P.C., according to facts and circumstances of the case after recording of evidence---Accused had joined investigation and there were two versions one put forth by complainant and the other by accused---Deeper appreciation of evidence was not warranted at bail stage and it was Trial Court to decide or pass any verdict that which was the correct version and the same required evidence---Complainant never gave any amount to accused, rather there was business bargain of "Ghee" inter se the complainant and accused for distribution purposes, which was based on profit---Matter was prima facie of civil nature and registration of case was an attempt to exert pressure upon accused to gain benefits---Pre-arrest bail was allowed in circumstances.

Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Shahid Imran v. The State and others 2011 SCMR 1614 and Ghulam Ali v. The State and another 2013 MLD 891 rel.

Muhammad Rizwan v. The State 2008 YLR 2169; Shakeel Ahmad v. The State and another 2012 MLD 732; Kh. Zahid Ahmad and others v. The State 2010 YLR 526 and Khalil Ahmed v. The State and another 2013 PCr.LJ 389 distinguished.

Chaudhary Manzoor Ahmad for Petitioner.

Muhammad Umair Mohsin for the Complainant.

Khalid Parvez Uppal, DPG along with Dildar, ASI for the State.

2014 P Cr. L J 52

[Lahore]

Before Shahid Bilal Hassan, J

AMAR UL HASSAN ZIKRIA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.3479 of 2011/BWP, decided on 16th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 22-A & 22-B--- Constitution of Pakistan, Art.199---Constitutional petition--- Cognizable offence--- Registration of complaint---Preliminary inquiry---Scope---Grievance of petitioner was that inquiries were allegedly held wherein accused was found innocent and stance of petitioner was found incorrect, despite the fact that serious allegations had been levelled against accused and wrong doers---Validity---All such acts by authorities denying petitioner his lawful right were unwarranted under the law---Police officials, at the very outset were bound to see as to whether a cognizable office was made out from bare reading of petition or not---As cognizable offence was made out, therefore, police officials were not under the law, bound to hold a preliminary inquiry as to the correctness or otherwise of allegations---From bare reading of complaint of petitioner, cognizable office was made out under the relevant provisions of law and police was bound to register criminal case against wrong doers---High Court directed police to register a case against accused and conduct investigation strictly in accordance with law---Petition was allowed in circumstances.

Muhammad Basir v. SHO and others PLD 2007 SC 539; Ghulam Farid v. S.H.O. and others 2013 PCr.LJ 117 and Mst. Sulima v. Government of Sindh through Secretary Home Department and 14 others 2013 PCr.LJ 100 rel.

Mrs. Kausar Iqbal Bhatti for Petitioner.

Manzoor Ahmad Warraich, learned AAG.

Muhammad Yasin, ASI.

Zeeshan Haider for Respondent No.4.

Ghulam Mohy Ud Din SHO in person.

2014 P Cr. L J 76

[Lahore]

Before Ali Baqar Najafi, J

AHMAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3279/B of 2013, decided on 2nd April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-F(v) & 34---Attempt to commit qatl-e-amd, causing Hashimah, common intention---Bail, grant of---Accused though was specifically nominated in the F.I.R., but he was behind the bars since April 2012, and no useful purpose would be served for his continuous incarceration in jail---Case of accused was at par with the case of co-accused who had been granted bail---Injury attributed to accused was on the non-vital part of the body, and he did not repeat the fire shot---Accused being entitled to concession of bail, was granted bail, in circumstances.

Umar Hayat v. The State and others 2008 SCMR 1621; Muhammad Umar v. The State and another PLD 2004 SC 477 and Federation of Pakistan through Secretary, Ministry of Interior Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 ref.

Umar Hayat v. The State and others 2008 SCMR 1621 rel.

Sarfraz Khan Gondal for Petitioner.

Zahid Younas, DPP with Yousaf, S.-I. for the State.

M. Tanveer Choudhry for the Complainant/Respondent No.2.

2014 P Cr. L J 102

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

Rana MUHAMMAD TAHSEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12097-B of 2013, decided on 9th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(iii), 353, 427, 186, 109, 201 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(i)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Mutalahimah, assault or criminal force to deter public servant from discharge of his duty, mischief, obstructing public servant in discharge of public function, abetment, causing disappearance of evidence of offence, common intention, act of terrorism---Bail, grant of---Two co-accused had been allowed bail by the Trial Court---Role of accused was that he being in league with main accused at the time of occurrence left the official vehicle, and he was not caused injuries by any one, so his involvement was apparent---Accused (a police official) was investigator of the earlier case of his Police Station, his connection with the complainant of said case, over telephone, could not be considered as a role of being involved with the other co-accused---Nothing had been recovered from accused during investigation---Matter regarding involvement of accused, and the extent to which he was liable, could only be determined after recording of evidence---Report of Doctor indicated that accused was patient of hepatitis and suffering from Diabetes, neuropathic pain and other diseases, which could not properly be taken care of in Jail---Further detention of accused in jail would serve no useful purpose---Bail was granted.

Abbas v. The State 2000 SCMR 212 and Peer Mukaram ul Haq v. National Accountability Bureau (NAB) 2006 SCMR 1225 ref.

Abdul Khaliq Safrani and Ijaz Ahmad Rana for Petitioner.

Munir Hussain Sial, Deputy Prosecutor-General with Muhammad Amin, Inspector with Record for the State.

2014 P Cr. L J 123

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD NASEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12916-B of 2013, decided on 7th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 420 & 462-C---Criminal breach of trust, cheating and tampering with auxiliary or distribution pipelines of petroleum---Bail, grant of---Sui gas theft---Delay in F.I.R.---Employee of mill---Case of further inquiry---Accused was shift in-charge of the mill where theft of sui gas was alleged to have been committed---Delay of one day in lodging crime report for which no plausible explanation was rendered by prosecution---Accused was not owner of factory where theft of gas had been committed, rather he was a petty employee serving over there for earning his livelihood---Prima facie, the accused had no nexus with crime alleged and case against him was one of further inquiry falling within the ambit of S.497(2), Cr.P.C.---Accused had been behind the bars since the date of his arrest and investigation was complete, his corpus was no more required by police for further investigation and as such no useful purpose would be served by his further detention in Jail---Culpability of accused would be determined by Trial Court during trial after recording of evidence---Bail was allowed in circumstances.

Qazi Misbah ul Hassan for the Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Faisal Rafique for the Complainant.

Ghulam Mustafa, ASI with record.

2014 P Cr. L J 139

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ZAFAR ABBAS and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.186-J and Murder Reference No.393 of 2009, heard on 10th September, 2012.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 392, 411 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was lodged with the delay of more than thirteen hours from the occurrence, and no plausible explanation had been mentioned in the F.I.R. for such gross delay, which had created serious doubt regarding the truthfulness of the prosecution case---Postmortem examination on the dead body of the deceased was also conducted with the delay of about thirty-four hours, and no plausible explanation was available for said delay, which delay had further created serious doubt about the truthfulness of the story---Evidence of the complainant was highly contradictory and that of prosecution witness was based on hearsay evidence---No identification parade of accused persons had been held in the case---No denomination of Currency Notes, allegedly snatched by accused persons from the complainant, was either mentioned in the F.I.R. or in the statement of the complainant made before the Trial Court---Neither any specific identification mark on the mobile phone, neither the make, nor on the wrist watch was mentioned in the F.I.R., or in the statement of the complainant---Alleged recovery of mobile phone, wrist watch and cash amount, which was jointly effected from both accused persons, was not helpful to the prosecution---Alleged recovery of motorcycle was not helpful in the prosecution case as the F.I.R. did not mention that accused persons used any motorcycle at the time of occurrence---No crime empty was taken into possession from the spot---No report of Forensic Science Laboratory regarding carbine and pistol was on record---In the absence of matching report of any crime empty with carbine and .30 bore pistol, alleged recovery of the weapons was inconsequential, and same was of no avail to the prosecution---If there was a single circumstance which created doubt regarding the prosecution case, same was sufficient to give benefit to accused---Present case was replete with number of circumstances which had created serious doubt about the prosecution story---Prosecution having failed to prove its case against accused persons beyond shadow of doubt, conviction and sentence of accused persons, were set aside, they were acquitted from the charges by extending them benefit of doubt, and were released, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Irshad Ahmed v. The State 2011 SCMR 1190; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Maqbool Ahmad Qureshi, for Appellant No.1.

Rana Muhammad Arif for Appellant on bail.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Complainant in person.

Date of hearing: 10th September, 2013.

2014 P Cr. L J 162

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD IMRAN ASLAM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KHUSHAB and 3 others---Respondents

Writ Petition No.17863 of 2012, decided on 29th January, 2013.

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

----Ss. 22-A, 22-B, 154 & 200---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Matter pending adjudication in a civil court---Availability of alternate remedy of private complaint---Effect---Applicant (petitioner) filed an application under Ss.22-A & 22-B, Cr.P.C., before Justice of Peace for direction for registration of criminal case alleging that accused persons (respondent) fraudulently prepared a gift deed from his maternal grandmother with an intention to deprive him and his mother from their inheritance, and further mortgaged said property with a bank---Justice of Peace dismissed said application--- Validity--- Matter qua inheritance of maternal grandmother of applicant was pending adjudication before a civil court, which would be decided on the basis of evidence to be adduced by the parties, and if the Trial Court came to the conclusion that any bogus document was prepared, the court was fully competent to order for registration of a case under S.195(1)(c), Cr.P.C.---Other co-sharers of the property in question had executed a deed surrendering their shares in favour of the accused persons, which deed had not been challenged by the applicant---Applicant was also equipped with the alternate remedy of filing a private complaint, therefore constitutional petition was not maintainable---Justice of Peace had rightly refused to issue direction for registration of a criminal case---Constitutional petition was dismissed accordingly.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Aijaz Ali Noonari v. Station House Officer P.S. Hussainabad and another 2012 YLR 360 distinguished.

(b) Constitution of Pakistan---

----Art. 199--- Criminal Procedure Code (V of 1898), S. 200---Constitutional petition--- Maintainability--- Availability of alternate remedy of private complaint---Effect---Where petitioner was equipped with an alternate remedy of filing a private complaint, constitutional petition would not be maintainable.

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

Imran Muhammad Sarwar for Petitioner.

Rana Shamshad Khan, Assistant Advocate-General with Kazim Bilal, S.I.

Ch. Dost Muhammad Kahot for Respondents Nos.3 and 4.

2014 P Cr. L J 218

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

M. SAJJAD ANWAR---Petitioner

Versus

C.C.P.O. and others---Respondents

Writ Petition No.7683 of 2010, decided on 29th November, 2013.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art. 199---Constitutional petition---Decree of Civil Court---Criminal proceedings, setting aside of---Issuance of cheque under coercion---Proof---Respondent sought order from Ex-Officio Justice of Peace for registration of case under S.489-F, P.P.C. against petitioner---Petitioner filed civil suit which was contested and subsequently Civil Court had decreed the suit in favour of petitioner on the ground that cheque in dispute was obtained from petitioner under coercion and did not incur any liability in favour of defendant of suit (respondent)---Validity---After decree of suit and declaration of cheques in dispute being obtained by exerting undue influence there was no need to lodge criminal case under S.489-F, P.P.C. against petitioner---High Court in exercise of Constitutional jurisdiction set aside order passed by Ex-officio Justice of Peace resulting into dismissal of application under S.22-A, Cr.P.C. filed by respondent---Petition was allowed in circumstance.

Qazi Misbah-ul-Hassan for Petitioner.

Wali Muhammad Khan, A.A.-G. with Usman Haider, A.S.-I. for Respondents.

2014 P Cr. L J 237

[Lahore]

Before Shahid Hameed Dar, J

Mst. NOORAN BIBI alias BANO---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.17342-B of 2012, decided on 14th December, 2012.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Accused, a female---Case of no evidence based on mere "firm belief" of complainant---Material prosecution witnesses joining investigation belatedly---Probability of false implication of accused---Effect---Allegation against the accused-lady was that she was involved in the murder of deceased since prosecution witnesses allegedly heard her whispering the same fact in the ear of her daughter---Complainant simply showed his "firm belief" about the alleged involvement of accused and failed to hint at any evidence in the F.I.R. as to how the accused had abetted the murder of deceased---Prosecution witnesses who allegedly heard the accused whispering joined the investigation more than four months after the occurrence without offering any explanation for such delay---Said witnesses were related to the complainant, therefore, they should have disclosed what they had heard, to the complainant at the earliest---False implication of accused due to malice and ulterior motives of complainant could not be ruled out in such circumstances---Accused was a female, therefore, her case was also covered under S.497(1), Cr.P.C.--- Case was one of further inquiry into guilt of accused---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----Ss. 498 & 497---Bail---Scope---Accused was implicated for the offence on basis of "firm belief" of complainant---Evidentiary value--- Such belief on part of complainant could not be equated with admissible piece of evidence as it simply showed that complainant speculated about the involvement of accused in the crime.

Rana Muhammad Arshad for Petitioner.

Ms. Muqaddas Tahira, Additional Prosecutor-General Punjab for the State.

S. H. Shahzad Azmat for the Complainant.

Khalid Abu Bakar, DSP, CIA, Cantt. Lahore.

2014 P Cr. L J 250

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NAVEED and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 831 and 1095 of 2012, decided on 4th April, 2013.

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

----S. 439--- Revisional jurisdiction--- Remand of cases--- Scope---Authenticity of prosecution evidence in revisional jurisdiction be determined instead of remanding the case on petty grounds.

Muzaffar Hassan and 11 others v. The State 1968 SCMR 1429 rel.

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

----Ss. 435 & 439---Revisional jurisdiction---Appreciation of evidence---Scope---High Court while exercising revisional jurisdiction under Ss.435 & 439, Cr.P.C., can not only go into evidence for its evaluation and reverse findings and adjudge propriety of judgment but also evaluate reasonability and correctness of conviction sentence.

Anwar and another v. Crown PLD 1955 FC 185 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 rel.

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

----Ss. 395 & 397---Criminal Procedure Code (V of 1898), S.439---Dacoity causing death---Revisional jurisdiction---Appreciation of evidence---Benefit of doubt--- One of the accused related to complainant but initially F.I.R. was registered against unknown persons, subsequently names of accused were introduced---Accused were convicted and sentenced by Trial Court as well as by Lower Appellate Court---Validity---Despite closely related to complainant side, which was also admitted by prosecution witness, accused was shown as unknown in the first part of crime report---Though indiscriminate firing was alleged but there was no scratch of fire arm injury on any person from either side and no independent witness came forward to support prosecution case either during investigation nor during trial---Nothing was recovered from accused persons except meager quantity of gold, despite version of prosecution that 21-Tolas gold articles were snatched---Prosecution failed to establish link of accused with commission of offence and Trial Court was not justified in passing conviction and Lower Appellate Court also fell in upholding conviction and sentence---High Court in exercise of revisional jurisdiction set aside conviction and sentence awarded to accused by two Courts below and they were acquitted of the charge---Revision was allowed in circumstances.

Khan Muhammad Vehnival for Petitioner (in Criminal Revision No.831 of 2012).

Ghulam Yaseen Bhatti for Petitioner (in Criminal Revision No.1095 of 2012).

Muhammad Saim Chaudhry for Respondent No.2.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Date of hearing: 4th April, 2013.

2014 P Cr. L J 272

[Lahore]

Before Altaf Ibrahim Qureshi and Shahid Bilal Hassan, JJ

NOOR KHATOON---Appellant

Versus

KHALIL AHMAD and others---Respondents

Criminal Appeal No.41 of 2011/BWP, decided on 7th May, 2013.

Penal Code (XLV of 1860)---

----S. 302--- Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd---Appeal against acquittal---Scope---Prosecution case was stuffed with many discrepancies going to roots of the case---Benefit of slightest doubt was to go to accused as he was favorite child of law---Ordinary scope of appeal against acquittal was considerably narrow and limited on the examination of judgment of acquittal---Credence should be accorded to findings of Trial Court whereby accused had been exonerated from the charge of commission of crime---Once judgment of acquittal was recorded, accused had earned double presumption of innocence, therefore, such judgment could not be interfered with unless and until strong and exceptional circumstances would exist, warranting interference by High Court---No misreading, non-reading and non-appraisal of evidence were noticed in true perspective by Trial Court---High Court declined to interfere in judgment passed by Trial Court---Appeal was dismissed in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 rel.

Muhammad Sharif Bhatti for Appellant.

Malik Muhammad Latif, Deputy Prosecutor-General for Respondents.

Date of hearing: 7th May, 2013.

2014 P Cr. L J 299

[Lahore]

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

SULEMAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.164, 178, 180 of 2007, Murder Reference No.317 of 2007 and Criminal Revision No.137 of 2007, decided on 15th January, 2013.

(a) Criminal trial---

----Cross-versions--- When cross-versions were put forth, and persons from both the sides were found to have sustained injuries, then, it would become imperative for the court to strive to unearth the truth through minute appraisal of the evidence by placing the respective contentions of the prosecution and defence in juxtaposition.

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

----Ss. 302(b), 337-A(i), 337-F(i)(ii) & 337-L(2)---Qatl-e-amd, causing Shajjah-i-Khafifah, causing Damiyah and Badiah and causing other hurt---Appreciation of evidence---Bone of contention, in the case, was a passage, which according to the complainant, existed at the spot and accused persons came there while armed along with Tractors to demolish the same---Contention of accused persons, on the other hand was that no such passage ever existed---Prosecution version that fight took place as accused wanted to demolish the passage, was false on the face of record, whereas the defence version that the complainant party wanted to construct the passage illegally, was true and plausible---Prosecution witnesses had not attributed any specific injury to accused persons and only general role of infliction of injuries was attributed---Record had established that the complainant party resorted to lawlessness, and trespassed in the land of accused---Complainant had mentioned in the F.I.R. that two accused persons were also injured at the time of occurrence, but neither their injuries were specifically mentioned nor it was stated as to how they had sustained the injuries---Complainant had tried to conceal the truth---Infliction of injuries to accused persons, had shown that complainant party was also armed---Accused persons had the right of self-defence, which extended to their persons and property---Defence version was more plausible and nearer to truth than the case put-forth by the prosecution---Trial Court had failed to keep in view the facts of the case, and did not appreciate the evidence in its true perspective---Accused, could not have been convicted and sentenced for commission of any offence, in circumstances and deserved acquittal---Impugned judgment of the Trial Court was set aside in circumstances.

Muhammad Akram v. The State 2012 SCMR 440 and Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 rel.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 ref.

Syed Badar Raza Gillani for Appellants.

Muhammad Abdul Wadood, DPG for the State.

Malik Mushtaq Ahmad Ghumb for the Complainant.

Date of hearing: 15th January, 2013.

2014 P Cr. L J 343

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD ASHRAF---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL DISTRICT JUDGE, CHAKWAL and 3 others---Respondents

Writ Petition No.1279 of 2011, decided on 9th July, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 195---Penal Code (XLV of 1860), S.182---Constitution of Pakistan, Art.199---Constitutional petition---Registration of case---Inquiry before registration---Direction of Ex-Officio Justice of Peace---Petitioner was aggrieved of direction given by Ex-Officio Justice of Peace for registration of case under S.182, P.P.C., against him---Validity---No F.I.R. was registered so on the basis of illegal proceedings conducted by police there was no occasion for Ex-Officio Justice of Peace to direct police to proceed under S.182, P.P.C.---No Court, under S.195, Cr.P.C., could take cognizance of any offence punishable under Ss.172 to 188, P.P.C., except a complaint in writing of concerned public servant or of some public servant to whom he was subordinate---Ex-Officio Justice of Peace passed order without jurisdiction and the same was not sustainable in the eye of law---Order passed by Ex-Officio Justice of Peace was on the basis of illegal proceedings of inquiry conducted by police before registration of case---When the foundation itself was not sustainable, the superstructure built thereon was bound to collapse---High Court in exercise of Constitutional jurisdiction set aside the order passed by Ex-Officio Justice of Peace--- Petition was allowed in circumstances.

Haji Muhammad Aslam v. Inspector-General and others PLD 2001 Lah. 84; PLD 2007 Lah. 53 and Superintendent of Police, Headquarters, Lahore and 2 others v. Abdul Ghafoor 1992 SCMR 2162 rel.

Ch. Mahmood Akhtar Khan and Malik Khurram Shahzad for Petitioner.

Ch. Imran Hassan Ali for Respondent No.4.

Saif-ur-Rehman, AAG and Shoukat, ASI.

2014 P Cr. L J 352

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD AHMAD JAVED---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.5072-B of 2013, decided on 11th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.10---Qatl-e-amd---Bail, grant of---Juvenile---Mental maturity---Determination---Standing Medical Board determined age of accused at less than 16 years which was also corroborated by his birth certificate according to which he was stated to be about 15 years and 3 months at the time of occurrence---Validity---Accused had been behind the bars for last nine months, challan of case was submitted and he was no more required for the purpose of investigation---Maturity of the mind of accused in the environment and circumstances prevailing at the time of occurrence could be better appreciated by Trial Court after recording of evidence---Minor under the age of 16 years at the time of commission of offence was granted bail under S.10 of Juvenile Justice System Ordinance, 2000, unless exceptional circumstances were found on record---High Court did not find any such circumstances floating on the record to disentitle accused from concession of bail set out for the persons like accused by legislature---Bail was allowed in circumstances.

Siraj Din v. Saghir-ud-Din alias GOGA and another 1970 SCMR 30 rel.

Muhammad Anwar v. The State 1983 SCMR 1001; 2002 MLD 1566 and Ghulam Mustafa and another v. The State 1971 PCr.LJ 485 ref.

Syed Nisar Ali Shah for Petitioner.

Mian Imran Raheem, DPG with Mushtaq, S.-I. for the State.

Ch. Amin Rehmat for the Complainant.

2014 P Cr. L J 396

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD SAEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15650-B of 2012, decided on 8th November, 2012.

(a) 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---Implication of accused on basis of second supplementary statement before police--- Divergent opinions during investigations qua participation of accused in the offence---Effect---Accused was nominated for the offence for the first time when both the eye-witnesses rendered secondary statements (before the police) claiming that they had identified the accused as the person who had fired at the deceased---Said witnesses did not disclose the source through which they learnt about participation of the accused in the offence, and such hesitation on part of witnesses in disclosing their source of knowledge was a crucial circumstance---Initially accused was declared as innocent by the investigating officer, however subsequently a fresh report under S.173, Cr.P.C. was prepared and accused was placed in column No.2 of the challan---During last round of investigation accused was (again) found involved in the occurrence---Such divergent opinions of investigating officers about alleged participation of accused in the occurrence were relevant for consideration at bail stage---Abscondence of accused did not adversely affect his bail petition as his case called for further probe into his guilt within the scope of S.497(2), Cr.P.C.---Accused was admitted to bail accordingly.

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

----Ss. 497 & 173---Bail---Investigations qua participation of accused in the offence---Divergent opinions---Relevancy---Accused initially declared as innocent by investigating officer---Subsequent investigation finding accused involved in the offence---Effect---Such divergent opinions of investigating officers about alleged participation of accused in the offence were relevant for consideration for bail plea of accused.

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

----S. 497---Bail---Abscondence of accused---Effect---Abscondence of accused would not adversely affect the outcome of his bail petition if sufficient reasons existed to believe that his case called for further inquiry into his guilt within the scope of S.497(2), Cr.P.C.

Ch. Waris Ali Janjua for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General Punjab with Waheed ASI for the State.

Muhammd Sajjad Amin for the Complainant.

2014 P Cr. L J 424

[Lahore]

Before Sagheer Ahmad Qadri, J

IMTIAZ ALI alias BHOLA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14988-B of 2012, decided on 27th November, 2012.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Recovery of a disputed amount by means of S.489-F, P.P.C.---Propriety---Complainant alleged that he supplied some material to the accused, who in order to satisfy his liability issued the cheque in question, which got dishonoured on presentation before the bank---Complainant contended that accused was previously involved in a similar case registered under S.489-F, P.P.C., therefore, he did not deserve the concession of bail---Validity---Accused was acquitted in the previous F.I.R. referred to by the complainant---Maximum punishment provided under S.489-F, P.P.C. was three years' imprisonment---Challan had been submitted in court---Offence under S.489-F, P.P.C. was not a device or mechanism to recover a disputed amount---Accused was admitted to bail accordingly.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Offence under S.489-F, P.P.C.---Purpose---Offence under S.489-F, P.P.C. was designed to penalize a person who issued a cheque knowing that it would be dishonoured---Said offence was not a device or mechanism to recover a disputed amount.

Mirza Umar Asad Ullah for Petitioner.

Muhammad Naeem Sheikh, Deputy Prosecutor-General.

Rana Adnan Ahmad for the Complainant.

Akhtar Ali, A.S.-I. with record.

2014 P Cr. L J 435

[Lahore]

Before Miss Aalia Neelum, J

NAZAR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3845-B of 2013, decided on 31st May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Rule of consistency---Divergent versions of complainant and investigating officer---Effect---Accused was alleged to have abetted co-accused for launching a murderous attack on the complainant party---Prosecution itself had two versions vis-a-vis accused, first was of the complainant according to which he was present at the spot at the time of occurrence, and second of investigating officer according to which accused was not present at the spot and was (only) abetting the co-accused behind the scene---Such consideration rendered the case against accused one of further inquiry into his guilt---Even otherwise, a co-accused attributed similar role of instigation in the F.I.R., was admitted to bail, therefore, accused was entitled to the same relief on the rule of consistency---Vicarious liability of accused would be seen by Trial Court after recording of evidence---Accused was granted bail in circumstances.

Syed Waseem Haider Shah for Petitioner.

Muhammad Nawaz Shahid, DDPP for the State.

Muhammad Hanif Raja for the Complainant.

Syed Ali Raza, A.S.-I. with record.

2014 P Cr. L J 456

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3504-B of 2013, decided on 7th May, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.376 & 386---Bail, grant of---Rape and extortion---Case of further inquiry---Delay in F.I.R.---Complainant was a school teacher who alleged that accused had blackmailed him and called her to his house for return of her computer data, where he raped her---F.I.R. was registered after four months of occurrence on arrival of her husband from abroad---Validity---Occurrence was alleged somewhere in August, 2012, which was reported in December, 2012---Reason for such delay for an educated lady not less than a school teacher was not adequately explained as neither consent of her husband was required nor he was a witness of occurrence---Final opinion of doctor showed that as per statement of victim, she was subjected to sexual intercourse five and a half months ago with an additional observation that she committed multiple intercourses after return of her husband---Record did not show any recovery memo of nude photographs---Data of computer collected at the maximum established threats of blackmailing without any demand of money or any kind---Two witnesses also kept mum for a period of three months and no mention of any date and time of occurrence was given---Complainant herself went to the house of accused just to collect data of her computer, which up till then was of no value to complainant, and according to her nude photographs were taken in the house of petitioner on the day of occurrence---Case of petitioner fell within the ambit of further inquiry, as contemplated under S.497(2) of Cr.P.C. into his guilt---Bail was allowed in circumstances.

Abid v. The State and others 2012 SCMR 647; Murtaza and another v. The State and another 2011 PCr.LJ 1619; Ali Hasnain Butt v. The State 2013 YLR 282; Mumtaz Imtiaz v. The State 2012 YLR 1110; Rafiq Ahmad v. The State and another 2012 PCr.LJ 1321; Khalil Yousuf and others v. The State PLD 1995 Lah. 486 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

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

----S. 497(2)---Bail, grant of---Heinousness of offence---Scope---Mere heinousness of offence cannot be deemed to be a ground to debar accused for grant of bail, if case is covered under S.497(2), Cr.P.C.---In such eventuality, accused is entitled to bail as a right and not by grace or concession.

Mst. Maria Khan v. The State and another 2013 SCMR 49; Abid Ali alias Ali v. The State 2011 SCMR 161 and Ehsan Ullah v. The State 2012 SCMR 1137 rel.

Muhammad Mumtaz Azad for Petitioner.

Muhammad Akhlaque, DPG for the State along with Haji Rab Nawaz, SI with record.

2014 P Cr. L J 469

[Lahore]

Before Miss Aalia Neelum, J

NAJEEB ULLAH---Appellant

Versus

MANGTA KHAN and another---Respondents

Criminal Appeal No.433 of 2011, decided on 10th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), S.420---Cheating and dishonestly inducing delivery of property---Appeal against acquittal---No illegality was found in the impugned judgment of acquittal---Appeal against acquittal had distinctive features, and the approach to deal with the appeal against conviction was distinguishable from the appeal against acquittal because presumption of double innocence was attached to the acquittal case---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary or foolish in nature---Judgment passed by the Trial Court was well versed and based upon sound reasoning---After pronouncement of acquittal by a court of competent jurisdiction, the presumption of innocene would become double---While adopting peculiar circumstances and the principle of double presumption of innocence, judgment rendered by the Trial Court, could not be interfered with, when there was no any infirmity or illegality in acquittal order---Judgment impugned did not suffer from any error of law, and the conclusion drawn by the Trial Court was strictly in accordance with law---Appeal being devoid of any merit was dismissed, in circumstances.

Jehangir v. Aminullah and others 2010 SCMR 491 rel.

Raja Maqsood Hussain for Petitioner.

2014 P Cr. L J 479

[Lahore]

Before Arshad Mahmood Tabassum, J

MUHAMMAD RAMZAN alias BAGGA and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.847/M of 2013, decided on 2nd December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426(2B)---Penal Code (XLV of 1860), S. 302(b)/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, common intention---Suspension of sentence after leave granting order of Supreme Court---Scope---Release of accused on bail---Trial Court convicted accused and co-accused under Ss. 302(b) & 34, P.P.C. and sentenced them to death and imprisonment for life respectively---High Court maintained conviction of both accused and co-accused but converted death sentence awarded to accused into life imprisonment---Accused and co-accused assailed judgment of High Court before the Supreme Court, which granted leave to appeal on the basis that there were contradictions between the F.I.R. and statements of complainant and prosecution witnesses before the court, therefore, evidence on record required re-examination---Plea of accused and co-accused that there was likelihood of their acquittal in the long run, and it was unlikely that their appeal before the Supreme Court would be heard and decided in the near future, hence, sentences awarded to them should be suspended---Validity---Keeping in view the leave granting order of the Supreme Court, and also the fact that accused and co-accused had remained in jail for about 13 years and there was no likelihood of their appeal being disposed of in the near future, sentences awarded to accused and co-accused were suspended and they were ordered to be released on bail---Petition for suspension of sentence was allowed accordingly.

Syed Muhammad Aslam Rizvi for Petitioner.

Shaukat Ali Ghauri, Additional Prosecutor-General with Muhammad Aslam, ASI for the State.

2014 P Cr. L J 487

[Lahore]

Before Muhammad Yawar Ali, J

ZULFIQAR ALI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MODEL TOWN, GUJRANWALA and 2 others---Respondents

Writ Petition No.9190-Q of 2013, decided on 3rd July, 2013.

Penal Code (XLV of 1860)---

----S. 406--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Criminal breach of trust---Delay in registration of F.I.R.---Complainant had been supplying goods to accused in order to sell the same for profit and alleged that accused being his agent had misappropriated his amount---Validity---Person could only be guilty of committing offence under S.406, P.P.C., if some property was given on trust and the said property was not returned to its original owner---F.I.R. showed that certain chemicals were periodically delivered by complainant to accused in order to do business, sell the same for profit and hand over due amount of money to him---Even if contents of F.I.R. were taken as gospel truth, accused could not be convicted for offence under S.406, P.P.C.---No one was to be prosecuted on the basis of vague and unspecified allegations---F.I.R. was lodged with an inordinate delay for which no plausible explanation was made---Offence was stated to have taken place in year, 2009, whereas F.I.R. was lodged with a long delay on 21-2-2013---Trial Court after submission of challan would not be in a position to frame charge and proceed further against accused and continuation of any criminal proceedings on the basis of F.I.R. would be an abuse of process of law resultantly the F.I.R. was quashed---Petition was allowed in circumstances.

Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Fisalabad and 5 others 2006 PCr.LJ 1900 and Shahid Imran v. The State and others 2011 SCMR 1614 rel.

Ms. Bushra Qamar for Petitioner.

Muhammad Azeem Malik, Additional A.-G. with Muhammad Imtiaz, S.-I. for Respondents.

Pervaiz Abid Heral for Respondent No.3.

2014 P Cr. L J 500

[Lahore]

Before Shezada Mazhar, J

MUHAMMAD AFZAL---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.9995 of 2013, decided on 4th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 491---Penal Code (XLV of 1860), S.395---High Court (Lahore) Rules and Orders, Vol. V, Part F, Ch.4, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Dacoity---Power to issue direction of the nature of a habeas corpus---Demand of security for release of detenus---Station House Officer, on registration of case against certain persons, allegedly had detained petitioner's two sons, illegally and without any lawful justification---Petitioner moved application under S.491, Cr.P.C. in the Trial Court---Alleged detenus were recovered by the bailiff and were produced before the Trial Court/Sessions Judge---Trial Court ordered to set detenus at liberty, subject to furnishing surety bonds in the sum of Rs. One lac with one surety each---Counsel for the petitioner/father of the detenus, had challenged said order of the Trial Court to the extent of furnishing surety bonds---Counsel for the petitioner had submitted that petition under S.491, Cr.P.C. had never been converted into bail by Trial Court and that Trial Court could only release the detenus after verification that the detention of the detenus was illegal---Validity---High Court which had granted powers of S.491, Cr.P.C., to the Sessions Judges under S.491(1-A), Cr.P.C., had framed rules for exercise of such powers---Rule 3 of part F, Ch. 4, Vol. V of High (Lahore) Rules and Orders provided that on production of detenue, the court had powers to make such order as in the circumstances of the case could seem to be proper---In the present case, due to difference of parentage of the detenus, Sessions Judge granted time to Police to verify the guilt of both detenus, and in the meantime, the detenus were set at liberty, subject to furnishing security---Said security was obtained only for the production of the detenus in the court in future---Held, Trial Court, had ample power/jurisdiction to pass such an order under the Rules---In absence of any illegality in the impugned order, same was upheld and Constitutional petition was dismissed, in circumstances.

Muhammad Shafi v. Muhammad Boota PLD 1975 Lah. 729 and Haji Hasnain v. Superintendent of Police Jacobabad and 8 others 2001 MLd 1295 distinguished.

Ch. Faqir Muhammad for Petitioner.

Rana Muhammad Hussain, A.A.-G. for the State.

2014 P Cr. L J 520

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

ZAFAR IQBAL alias PAPPI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.281 of 2008 and Murder Reference No.37 of 2009, heard on 11th September, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence---Sentence, reduction in---Accused was specifically nominated in promptly lodged F.I.R., and the names of the witnesses had also been provided---Crime weapon was recovered at the instance of accused; which was sent to the Forensic Science Laboratory for matching the same with the crime empties---Laboratory report revealed that bullets were fired from the same weapon recovered at the instance of accused---Both eye-witnesses though were closely related to the deceased, but mere relationship of witnesses was not sufficient to disbelieve the testimony of such witnesses, unless it was shown that their evidence was not confidence-inspiring---Accused had failed to point out any ulterior motive on the part of said witnesses for falsely implicating him in the case---Confidence-inspiring account provided by said witnesses, could not be shattered by defence in the cross-examination---Statements of said witnesses were properly relied upon by the Trial Court, in circumstances---Prosecution failed to prove the motive to its hilt---Contradiction with regard to locale of injury on the person of the deceased, in the evidence of prosecution witnesses, was not fatal to the main statements---Accused could not prove his plea of alibi---Simple statement of accused that it was an unseen occurrence, without any corroboration, was not believable---Prosecution through convincing and cogent evidence, had established that occurrence had taken place in presence of the witnesses---Prosecution by producing convincing and confidence-inspiring ocular account, which was in line with the medical evidence and factum of recovery of crime weapon at the instance of accused, had established the charge of murder of the deceased beyond the shadow of doubt---Motive for the occurrence having not been established, treating the same as mitigating circumstance, death sentence awarded to accused, was commuted into the one of imprisonment for life while the remaining sentences would remain intact---Benefit of S.382-B, Cr.P.C., was extended to the accused, in circumstances.

Talib Hussain v. The State 2009 SCMR 825 rel.

Muhammad Aslam Khan Dhukkar for Appellant.

Malik Muhammad Jaffar, D.P.-G. for the State.

Muhammad Nadeem Kanjoo for the Complainant.

Date of hearing: 11th September, 2013.

2014 P Cr. L J 538

[Lahore]

Before Shezada Mazhar, J

LIAQAT ALI and 11 others---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4636-B of 2013, decided on 5th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.471, 420 & 468---Using as genuine a forged document, cheating, forgery---Ad interim pre-arrest bail, confirmation of---Accused persons though were named in the F.I.R., but there was delay of more than six months in lodging the F.I.R.---Accused had been declared innocent during the course of investigation---Complainant party was in possession of part of land purchased from accused persons---Ingredients of Ss.468 & 471, P.P.C. were not attracted to the facts and circumstances of the case; whereas the offence under S.420, P.P.C. was bailable---Counsel for the complainant had not denied the arbitration agreement executed between the parties, wherein it was clearly mentioned that accused persons would hand over the possession of same land against the earnest money received by accused persons, and in case they succeed before the Supreme Court they would execute the sale-deed in favour of complainant---Possession of land was handed over to the complainant party as per the arbitration deed---Chances of false implication of accused persons in the case, could not be ruled out---Prima facie, the civil dispute seemed to have been converted to criminal offence---Evidence against accused persons was in the shape of documents which were in the exclusive possession of prosecution/Investigating Agency, and if accused would be admitted to bail, there was no apprehension of their tampering with the prosecution evidence---No useful purpose would be served by sending accused persons behind the bars---Ad-interim pre-arrest bail already granted to accused persons, was confirmed, in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170 rel.

Muhammad Zahoor Nasir Ch. for Petitioner.

Aamir Jalil Siddiqui for the Complainant.

Aqeel-ur-Rehman, Deputy Prosecutor-General Punjab for the State.

Mohib-ur-Rehman, Circle Officer, Anti-Corruption Establishment, Kasur.

2014 P Cr. L J 561

[Lahore]

Before Kh. Imtiaz Ahmad and M. Sohail Iqbal Bhatti, JJ

AZIZ ULLAH KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Jail Appeal No.103-J of 2010 and Criminal Jail Appeal No.10 of 2012, decided on 23rd January, 2014.

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

----Ss. 5, 9, 11, 13, 16, 45 & 46--- Possessing and trafficking narcotics---Award of punishment---Jurisdiction of Special Court---Control of Narcotic Substances Act, 1997, which was a special law, had provided for stringent and long punishment---Sentences specified in the Act, would depend upon quantity of recovered narcotic substances, and not the narcotic content of the recovered substance---Special care to be taken in narcotic cases by putting the prosecution to the strict test to prove its case---No room for doubt as to the exact quantity of the substance recovered---Accused being on the receiving end of long and strictest punishments, safeguards from his point of view should not be allowed to be sacrificed at the altar of mere comfort and convenience of the prosecution.

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

----Ss. 9(c), 14 & 15---Possessing and trafficking narcotics---Denial of accused of allegation levelled against him---Effect---If at the time of framing of charge, accused would deny the allegation levelled against him by the prosecution; that nothing had been recovered from his possession or custody; and that in his statement recorded under S.342, Cr.P.C. he had controverted the allegation regarding recovery of narcotics from his possession or custody, then mere failure to challenge during the trial that remaining untested recovered substance was not narcotic substance, could neither weaken the case of defence nor strengthen the case of the prosecution.

Nadir Khan and another v. The State 1998 SCMR 1899; Ali Muhammad and another v. The State 2003 SCMR 54; Kashif Aamir v. The State PLD 2010 SC 1052; Muhammad Hashim v. The State PLD 2004 SC 856; Ameer Zaib v. The State PLD 2012 SC 380; The State v. Amjad Ali PLD 2007 SC 85 and Muhammad Aslam (Amir Aslam) and others v. District Police Officer Rawalpindi and others 2009 SCMR 141 ref.

(c) Words and phrases---

----"Sample"---Meaning explained.

(d) Words and phrases---

----"Representative sample"---Meaning and connotation.

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

----Ss. 9 & 32--- Possessing and trafficking narcotics--- Articles connected with narcotics---Taking of samples---Where wrappers, slabs, cakes, packets, boxes, containers, etc. were recovered, it was mandatory to take separate sample from every separate packet, wrapper, slab, box, container and cake to make it a 'Representative Sample' of narcotic substance recovered.

(f) Administration of justice---

----Speedy disposal of cases---Sacrifice of justice to obtain speedy disposal of cases, could hardly be termed as 'justice'---Balance ought to be maintained between the two commonly known maxim; "justice delayed was justice denied", and 'justice rushed was justice crushed'---Speed and efficiency, should not be at the expense of justice.

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

----S. 9(c)--- Possessing and trafficking narcotics--- Appreciation of evidence---Sentence, reduction in---Co-accused had already served out 16 years, 11 months and 22 days, including the remissions; and accused had served out of 17 years, 6 months and 14 days including the remissions---Both accused persons, in circumstances, had served out more sentence as provided in sentence policy, laid down in Ghulam Murtaza v. The State PLD 2009 Lahore 362---Conviction of accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 was upheld, but their sentence was reduced to already undergone by them including the fine.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Raja Shahzad Anwar and Raja Ghanem Aabir Khan for Appellants.

Raja Tauqeer Ahmad Satti, Special Public Prosecutor, ANF for the State.

Date of hearing: 17th December, 2013.

2014 P Cr. L J 591

[Lahore]

Before Muhammad Anwaarul Haq and Shahid Bilal Hassan, JJ

PUNNAL KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.510-B of 2013, decided on 21st May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-A & 34---Kidnapping or abducting for ransom, common intention---Bail, grant of---Further inquiry---Originally case was registered against six accused person and specific role was assigned to said accused persons, but name of accused was not nominated in the F.I.R.---Accused was involved in the case on the supplementary statement of the alleged abductee, who alleged that accused was guarding the place, where accused party had kept the said abductee---No allegation was levelled against accused with regard to kidnapping the abductee---Accused was not alleged to have either demanded ransom or received the same---Specific role had been assigned to six accused persons nominated in the F.I.R. and not to the accused---Involving a person during supplementary statement would create doubt in the case of prosecution to the extent of newly-added facts and accused---Trial of case was likely to consume reasonable period for its final verdict---Question of evidentiary value of the supplementary statement of the complainant, and that of authenticity of allegation against accused, would be determined by the Trial Court after recording the evidence of the parties; and till then case of accused was covered within subsection (2) of S.497, Cr.P.C. being one of further inquiry---Accused who was behind the bars was no more required by the prosecution for any further investigation---Detention of accused for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Syed Muhammad Jameel Awan for Petitioner.

Asghar Ali Gill, DPG with Abdul Majeed ASI for the State.

Nasir-u-Din for the Complainant.

2014 P Cr. L J 599

[Lahore]

Before Shezada Mazhar, J

PARVAIZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6708-B of 2013, decided on 17th June, 2013.

(a) 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 and co-accused allegedly abducted complainant's wife and raped her--- Delay of 1-1/2 months in lodging of F.I.R. was not explained---Alleged victim was a married woman of 50 years having grown-up children---Accused and co-accused were father and son, therefore it did not appeal to a prudent mind that a father and son would commit zina-bil-jabr with the victim together---Neither any report of Chemical Examiner qua vaginal swabs was obtained nor DNA test was conducted and even semen grouping had not been done to ascertain involvement of accused and co-accused---Semen found on vaginal swabs of the victim would lose its evidentiary value in such circumstances---Doctor who conducted medical examination of victim did not observe any marks of violence or resistance on part of the victim---Accused and co-accused were found innocent by the police and their names were placed in Column No.2 of the report under S. 173, Cr.P.C.---Accused and co-accused were no more required by police for further investigation---Case was one of further inquiry---Accused and co-accused were released on bail in circumstances.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107 and Muhammad Aslam v. Shakeel Liaqat and others 2006 SCMR 348 rel.

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

----S. 497---Bail---Abscondment of accused---Effect---Bail could be granted if the accused had a good case for grant of bail on merits and his abscondment would not come in the way while granting him bail.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

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

----S. 376---Rape---Proof---Medical evidence---Semen found on vaginal swabs of the victim, evidentiary value of---Scope---Report of Chemical Examiner qua vaginal swabs not obtained---DNA test not conducted---Semen grouping not done to ascertain involvement of accused---Effect---Semen found on vaginal swabs of the victim would lose its evidentiary value in such circumstances.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107 and Muhammad Aslam v. Shakeel Liaqat and others 2006 SCMR 348 rel.

Waseem Sabir Ch. for Petitioners.

Nasir Mahmood Sial, Deputy District Public Prosecutor along with Rashid Islam for the State.

Nemo for the Complainant.

2014 P Cr. L J 622

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

KASHIF AMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14157-B of 2013, decided on 30th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(iii) & 34---Causing Mutalahimah to any person, common intention---Pre-arrest bail, grant of---Accused was nominated in the F.I.R., but delay of twenty-nine days in lodging the same was not plausibly explained---No specific role/injury had been ascribed to accused but role of collective/joint nature was attributed to him---Offence alleged against accused, did not attract the prohibition contained in S.497(1), Cr.P.C.---Liberty of a person was a precious right, which could not be curtailed, merely on the basis of bald allegations---When nothing was to be recovered from accused, sending him behind the bars, would not serve any useful purpose---Ad interim bail already granted to accused, was confirmed, in circumstances.

Hammad Akbar Wallana for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

M. Junaid Ahmad Kahlon for the Complainant.

Amjad, A.S.-I. with record.

2014 P Cr. L J 628

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ANWAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2080-B of 2013, decided on 6th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 377, 386, 500, 364-A & 120-B---Unnatural offences, extortion by putting a person in fear of death or grievous hurt, defamation, kidnapping or abducting a person under the age of fourteen, criminal conspiracy---Bail, refusal of---Accused allegedly induced the co-accused to commit sodomy with the victim (complainant's son) and he also recorded the act of sodomy on his cell phone so as to blackmail the complainant for extorting money---Accused being in league with the co-accused schemed to stigmatize the complainant's family and blackmail him in the process---Accused actively contributed towards the commission of the offence by letting the co-accused use his premises for an immoral activity and also recorded the act of sodomy, with intent to extort money from the complainant---Witnesses in whose presence accused extorted money from the complainant consistently supported the prosecution case---Alleged victim gave an account of his ordeal while rendering his statement before the Investigating Officer---Medical certificate of the victim rendered necessary corroboration to the accusations contained in the F.I.R.---Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C.--- Accused was denied bail in circumstances.

Ch. Muhammad Lehrasib Khan Gondal for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab with Fazeel Ahmad A.S.-I. for the State.

Ch. Muhammad Ashraf Sohawa for the Complainant.

2014 P Cr. L J 647

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD TARIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3495-B of 2013, decided on 17th April, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 452, 148, 149 & 337-F(ii)--- Attempt to commit qatl-e-amd, house-trespass after preparation for hurt, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-badiah---Bail, grant of---Further inquiry---Case of ineffective firing---Non-recovery of weapon---Effect---Allegation against accused was that he teased womenfolk in front of a church and on being stopped, he fired at the complainant, but the fireshot missed---Allegation of reprobative behaviour against accused was not supported by any woman---Without any evidence accused could not be considered a ruffian---Maximum allegation against accused was that of ineffective firing---Partway investigation presence of accused at the spot had not been established---No weapon of offence was recovered from accused---Delay in lodging F.I.R. was conspicuous---Case against accused was one of further inquiry---Accused was granted bail accordingly.

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

----S. 497(2)---Bail, grant of---Scope---Involvement of accused in other criminal cases---Mere involvement of accused in criminal cases except on the eve of conviction, could not deter the court to grant bail, if the case against accused prima facie appeared to be a matter of further inquiry.

Fahid-ur-Rehman Tipu Zafar for Petitioner.

Khurram Shahzad Maan for the Complainant.

Muhammad Akhlaq, D.P.-G. with Tariq Ahmad, ASI for the State.

2014 P Cr. L J 653

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14996-B of 2012, decided on 1st January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail petition---Fresh grounds---Scope---Post-arrest bail petition dismissed by High Court by attending the merits of the case---Subsequent bail petition in the same case filed before High Court without accrual of any "fresh grounds"---Effect---Where no fresh ground accrued to the accused (at the time of filing subsequent bail petition) to get a different conclusion, bail petition would be dismissed.

1996 SCMR 1845 and 2009 SCMR 324 distinguished.

Arshad Ali Chohan for Petitioner

Nisar Ahmad Virk, Deputy Prosecutor-General and Arshad, S.-I. with record for the State.

Mohsin Ali for the Complainant.

2014 P Cr. L J 658

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ALLAH DITTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4038-B of 2013, decided on 15th April, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/34 & 109---Qatl-e-amd, common intention, abetment---Bail, grant of---Only allegation of raising lalkara---Non-attribution of any overt act during occurrence---Previous enmity between parties---Effect---Allegation against accused was that he raised a lalkara upon which co-accused fired at and killed the deceased---Although accused was named in the F.I.R. but no overt act had been ascribed to him---Only role ascribed to accused was of raising lalkara--- Accused was not stated to be armed with any weapon---Previous enmity between the parties was admitted---Accused was admitted to bail in circumstances.

Rafiq Khan v. The State 1995 SCMR 343 and Tariq Zia v. The State 2003 SCMR 958 rel.

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

----S. 497---Bail---Scope---Non-attribution of any overt act during occurrence--- Effect--- Whenever no overt act was ascribed to the accused, courts were lenient towards admitting accused to bail.

Rafiq Khan v. The State 1995 SCMR 343 and Tariq Zia v. The State 2003 SCMR 958 rel.

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

----S. 497(2)---Bail---Offence entailing capital punishment---Case of further inquiry---Effect---When otherwise case against accused was covered under S.497(2), Cr.P.C., he was entitled to concession of bail as matter of right.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Ch. Naveed Akhtar Bhatti for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General and Sajwar Tariq, Inspector with record for the State.

2014 P Cr. L J 669

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ALI alias FAISAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.618 and Murder Reference No.160 of 2008, heard on 17th April, 2013.

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

----Ss. 302(b) & 100---Qatl-e-amd---Appreciation of evidence---Private defence, right of---Scope---Benefit of doubt---Matter was reported to the Police and the formal F.I.R. was lodged with the delay of 4-1/2 hours and no plausible or convincing reason had been given by the prosecution for said delay---Delay had created serious question about the truthfulness of the prosecution story---Story narrated by complainant and prosecution witness was highly improbable---Prosecution witnesses had made dishonest improvements in their statements before the Trial Court in order to strengthen their case---When a witness would improve his version to strengthen the prosecution case, his evidence could not be relied upon---Material contradiction existed in the statements of the eye-witnesses and the evidence of prosecution witnesses was in conflict with the medical evidence---Not safe to rely upon the testimonies of said eye-witnesses---Motive as alleged by prosecution had not been proved in the case---Accused could not be convicted on the basis of mere alleged recovery of weapon of offence in absence of any reliable and convincing direct or circumstantial evidence---Evidence of recovery of weapon of offence, was only of corroborative in nature and conviction of accused could not be sustained on the basis of said piece of evidence---Accused had stated that on the night of occurrence, deceased assaulted his mother and he attempted to commit rape with her, who raised alarm, whereupon accused was attracted to the spot and made fire shots at the deceased in order to save his mother---Accused in such a situation, had the right of private defence, which also extended to cause death of the assailant as provided under S.100, P.P.C.---Case of accused fell within the four corners of general exception---Present case was replete with number of circumstances which had created serious doubts about the prosecution story---Prosecution having failed to prove its case against accused beyond the shadow of doubt, conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge by extending him the benefit of doubt and he was released, in circumstances.

Ashiq Hussain alias Muhammad Ashraf v. State PLD 1994 SC 879; Amin Ali and another v. The State 2011 SCMR 323; Akhtar Ali and others v. The State 2008 SCMR 6; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Mehmood ahmad and 3 others v. The State and another 1995 SCMR 127; 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; Nek Muhammad and another v. The State PLD 1995 SC 516; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 100---Right of private defence---Scope---Assault with the intention of committing rape---Right of private defence would extend to the voluntary causing the death of the assailant.

(c) Criminal trial---

----Evidence---If the prosecution evidence was disbelieved by the court, then the statement of accused was to be accepted or rejected as a whole---Legally not possible to accept the inculpatory part of the statement of accused and to reject the exculpatory part of the same statement.

Muhammad Asghar v. The State PLD 2008 SC 513 ref.

(d) Criminal trial---

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case, then the same was sufficient to give benefit of doubt to accused.

Ch. Muhammad Afzal Nazir for Appellant.

Arshad Mahmood, Deputy Prosecutor-General for the State.

Ch. Muhammad Ashraf Goraya for the Complainant.

Date of hearing: 17th April, 2013.

2014 P Cr. L J 726

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD ASIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16506-B of 2013, decided on 29th January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 353, 109, 34, 427, 201 & 186---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21(l)---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, obstructing public servant in discharge of public functions, acts of terrorism---Bail, grant of---Further inquiry---Co-accused persons allegedly killed police officials and other deceased persons---Allegation against accused was that he drove the co-accused persons to the place of occurrence---Accused was only ascribed role of conspiracy in the F.I.R.---Occurrence was committed by four unknown persons, but subsequently, complainant made supplementary statement indicating that accused was driving the car in which the co-accused persons came at the spot and resorted to firing---Accused was found innocent during investigation and in report under S. 173, Cr.P.C. his name was put in Column No.2---One of the co-accused who was assigned a role similar to that of accused had already been released on bail---Accused was also the complainant of an earlier case, wherein a deceased of the present occurrence and his brother were nominated for the crime, therefore, probability of false implication of accused in the present case could not be ruled out---Accused was no more required for further investigation---Case was one of further inquiry---Accused was released on bail in circumstances.

Abdul Khaliq Safarani for Petitioner.

Munir Ahmed Sial, Deputy Prosecutor-General for the State.

Naveed Akhtar Bhatti for Gulfan Ullah.

Muhammad Akram, S.I./I.O. with record.

2014 P Cr. L J 754

[Lahore]

Before Mazhar Iqbal Sidhu and Sayyed Mazahar Ali Akbar Naqvi, JJ

LORY VIE PIMENTEL---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT NO.IV, LAHORE and 6 others--Respondents

Writ Petition No.8679 of 2012, decided on 20th November, 2012.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), S. 365---Criminal Procedure Code (V of 1898), S. 265-D---Constitution of Pakistan, Art.199---Constitutional petition---Act of terrorism---Return of case to Regular Court---Petitioner/complainant was aggrieved of the order passed by Anti-Terrorism Court, whereby case was transferred to the court of regular jurisdiction---Validity---Complainant was working as maid under an agreement in the house of accused and allegedly she was maltreated and her mobile phone was also snatched---Such act could not be termed as an act of "terrorism"---Before framing of charge Judge, Anti-Terrorism Court after having considered that facts of the case did not satisfy ingredients of S.365-A, P.P.C. rightly passed the order of transfer of the case---Petitioner failed to point out any illegality/infirmity in the order passed by Anti-Terrorism Court---Petition was dismissed in circumstances.

Muhammad Faisal Nawaz Bhatti for Petitioner.

Sattar Sahil, Assistant Advocate-General.

Azam Nazeer Tarar for Respondent No.5.

2014 P Cr. L J 779

[Lahore]

Before Mehmood Maqbool Bajwa, J

ZULQAR HUSSAIN---Petitioner

Versus

TANVIR AHMAD GILL, ADMIN OFFICER, SNGP and another---Respondents

Writ Petition No.28655 of 2013, decided on 11th March, 2014.

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

----S. 154--- Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court--- Scope--- Quashing of F.I.R.---Factual controversy---Petitioner pleading facts relating to factual controversy while seeking quashment of F.I.R.---Effect---Factual controversy could not be decided by the High Court while exercising constitutional jurisdiction---Constitutional petition was dismissed accordingly.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 rel.

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

----Ss. 154, 173, 249-A & 265-K---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.---Challan already submitted before Judicial Magistrate---Effect---Appropriate remedy available to the accused in such circumstances would be before Trial Court either under S.249-A or S.265-K, Cr.P.C.---Constitutional petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

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

----S. 154---Gas (Theft Control and Recovery) Ordinance (II of 2014), S.5(7)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.---F.I.R. registered against accused for stealing gas by tampering with gas meter---Plea of accused that after promulgation of Gas (Theft Control and Recovery) Ordinance, 2014 all cases of theft of gas were transferred to the Gas Utility Court, and as such ordinary court of criminal jurisdiction had no jurisdiction to decide the fate of present F.I.R., therefore same should be quashed---Validity---Promulgation of Gas (Theft Control and Recovery) Ordinance, 2014 would not be sufficient to grant the relief sought by accused in view of S.5(7) of the said Ordinance, according to which all the proceedings pending in any other court shall be transferred to the Gas Utility Court---Constitutional petition filed by accused seeking quashing of F.I.R. was thus not maintainable on legal premises, and was accordingly dismissed.

Muhammad Umar Riaz for Petitioner.

Umar Sharif for SNGPL.

Ms. Firdous Butt, AAG with Muhammad Azam, S.-I.

2014 P Cr. L J 800

[Lahore]

Before Muhammad Yawar Ali, J

SHARAFAT alias BODA---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.214-J of 2011 and C.M. No.2 of 2012, decided on 20th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.376(1)---Rape---Suspension of sentence---Release of accused on bail---Statutory delay in disposal of appeal---Accused was convicted for rape and sentenced to 17 years' imprisonment by the Trial Court---More than 2 years had gone by since accused filed an appeal against his conviction for rape, but the same had not been disposed of as yet---Delay in hearing of appeal was not occasioned by the accused---No likelihood existed of hearing of appeal in the near future---Accused was a juvenile when he was tried and convicted by the Trial Court---Nothing on record showed that accused was a previous convict or was a hardened, desperate or dangerous criminal or was an accused of an act of terrorism punishable with death or imprisonment for life---Sentence of accused was suspended in circumstances and he was released on bail.

Mian Tariq Hussain for Petitioner.

Nisar Ahmad Gondal, A.P.-G. and Najam S.-I. for the State.

Nemo for the Complainant.

2014 P Cr. L J 807

[Lahore]

Before Muhammad Anwaarul Haq, J

HAMZA BASIT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7267-B of 2013, decided on 27th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 452, 354, 337-F(i), 337-L(2), 337-A(i) & 34---House-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty causing damiyah, hurt, causing Shajjah-i-Khafifah, common intention---Pre-arrest bail, refusal of---Accused was nominated in the F.I.R. with a specific role of not only committing house-trespass, but also outraging the modesty of the complainant and giving her beating---Complainant was medically examined just within two to three hours of the alleged occurrence, and the medical evidence fully corroborated the version given in the F.I.R.---Besides the complainant herself, one of the alleged eye-witness, also supported the prosecution version---Accused, during the investigation, had been found fully involved in commission of alleged occurrence---No mala fide on the part of the complainant, or the Police for false implication of accused had been established---In absence of any justifiable reason to confirm the pre-arrest bail of accused, ad interim pre-arrest bail granted to accused, was recalled.

NLR 1999 Criminal 527 (sic.) and 1988 PCr.LJ 270 ref.

Ch. Liaquat Ali Sandhu for Petitioner.

Muhammad Nawaz Shahid, DDPP with Sher Muhammad A.S.-I. for the State.

Sardar Muhammad Khalil for the Complainant.

2014 P Cr. L J 814

[Lahore]

Before Abdul Sami Khan, J

MUSHTAQ AHMAD and others---Petitioners

Versus

Mst. KHALIDA BIBI and another---Respondents

Criminal Revisions Nos.318 and 199 of 2012, decided on 4th June, 2013.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd, common intention---Complainant, in his F.I.R., initially nominated a person and two unknown persons---Complainant also involved two other persons in the F.I.R., who during the investigation were found innocent---Complainant being dissatisfied by the outcome of investigation in the case, instituted a private complaint, wherein he nominated two male accused persons, and one female---Trial Court summoned two male accused to face trial, but declined to summon female accused---Validity---Said three accused persons, male and female, were not nominated by the complainant in his earlier F.I.R. at Police Station, but later on, outcome of the investigation, prompted the complainant to institute private complaint involving said three accused persons as abettor---Neither the names of said three accused persons, figured in the F.I.R., nor any allegation of abetment had been levelled against any one of them---Complainant had not levelled allegation against the Police that it had not recorded statement of the complainant correctly---Complainant at belated stage could not pour scorn on registration of F.I.R. in an incorrect manner, wherein the complainant had remained unable to connect said three accused persons with the commission of offence---Complainant had not recorded any statement involving said three accused persons during investigation, till submission of challan, which made apparent that after thinking over the matter, the complainant had instituted the private complaint by making some dishonest improvement, and had introduced said three accused persons as abettors with a delay of six months after registration of F.I.R.---Said accused persons were residents of the area which was far away from the place where occurrence had taken place and it did not appeal to a prudent mind that said accused would hatch conspiracy, especially when no justifiable reason had been advanced by the prosecution of their presence at the place of occurrence---Trial Court, in circumstances, had rightly dropped female accused from proceedings---Order of summoning other two male accused to face trial, was also not justified---Criminal revision of the complainant, was dismissed, whereas criminal revision filed by two male accused was accepted and order to the extent of summoning them to face trial, was set aside, in circumstances.

Zafar and others v. Umer Hayat and others 2010 SCMR 1816 rel.

Rana Iqbal Ahmad Khan for Petitioner (in Criminal Revision No.318 of 2012).

Nemo for Petitioners (in Criminal Revision No.199 of 2012).

Nisar Ahmad Virk, Deputy Prosecutor-General for the State.

Nemo for Respondent No. 1 (in Criminal Revision No.318 of 2012).

Date of hearing: 4th June, 2013.

2014 P Cr. L J 828

[Lahore]

Before Shahid Hameed Dar and Muhammad Yawar Ali, JJ

NAZIR AHMAD---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Appeal No.857 of 2003, heard on 25th February, 2013.

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

----S. 417(2-A)--- Appeal against acquittal--- Considerations for interference in "appeal against acquittal" and in "appeal against conviction"---Considerations for interference in appeal against acquittal, and in appeal against conviction, were altogether different---Judgment of acquittal could not be upset sparingly, as accused would enjoy double presumption of innocence, one relating to the pre-judgment stage, that every accused was innocent, till proved otherwise, and the other one, through a judicial verdict.

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

---Ss. 302, 337-A(ii), 337-F(i)(iii)(iv), 337-L(2), 34 & 109---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, causing Shajjah-i-Madihah, Damihah, Mutalihimah, Mudihah, common intention, abetment---Appeal against acquittal---Reappraisal of evidence---Counsel for appellant/complainant, had failed to point out any illegality, infirmity or improbability in the impugned judgment of acquittal, except for repeating the accusations---Present was not a case requiring interference with the impugned judgment, which appeared to have been passed strictly in line with the settled principles of law---Complainant, did not claim his presence at the hot-spot at the crucial hour and he with a view to establish his presence, had massively improved upon his previous statement while rendering his testimony---Two other names of the eye-witnesses figured in complaint, but despite being independent persons, were not produced by the prosecution at trial, and were given up, as unnecessary---Presence of the complainant at the relevant time of incident, having not been established, his improved version, qua witnessing the occurrence, was excluded from consideration---In view of massive delay in medical examination of the deceased, it could be said that none of the eye-witnesses had witnessed the occurrence---Medical evidence, did little good to prosecution's case---Recovery of weapons had rightly been disbelieved by the Trial Court, as none of those was stained with blood---Time of occurrence, could be much earlier than one, claimed by unreliable and rejected eye-witnesses in their evidence---Reason recorded by the Trial Court for acquittal of accused, were in line with the evidence on record and circumstances mentioned there---Trial Court had acted strictly in accordance with law and principles governing the safe administration of criminal justice---Reasons, whereon acquittal of accused was based were neither artificial nor ridiculous---Well-reasoned judgment of acquittal could not be interfered with in appeal---Appeal against acquittal was dismissed, in circumstances.

Sikandar Hayat's case 1995 SCMR 616 and Noora and another v. The State PLD 1973 SC 469 rel.

Zafar Iqbal Chohan for Appellant.

Khurram Khan, Deputy District Public Prosecutor for the State.

Ch. Saleem Akhtar for the Complainant.

Date of hearing: 25th February, 2013.

2014 P Cr. L J 838

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

IMAM AHSAN---Petitioner

Versus

STATION HOUSE OFFICER and another---Respondents

Writ Petition No.3049-Q of 2013, decided on 29th March, 2013.

West Pakistan Pure Food Ordinance (VII of 1960)---

----Preamble, Ss. 23-C & 32---Criminal Procedure Code (V of 1898), Ss. 154 & 173---Penal Code (XLV of 1860), S. 420---Constitution of Pakistan, Art. 199---Constitutional petition---Filing of complaint by unauthorized person---Quashing of F.I.R.---Validity---Provisions of West Pakistan Pure Food Ordinance, 1960, being special law, would be construed strictly and would not be permitted to be intermingled with the provisions of general law rather would prevail over general law---F.I.R. registered at the instance of person other than the nominated persons in S.32 of the West Pakistan Pure Food Ordinance, 1960 would not be processed further to allow the F.I.R. to be converted into report and to place before a court of competent jurisdiction for trial---Where the complainant was not authorized person as provided under S.32 of the Ordinance to lodge the complaint under the provision of West Pakistan Pure Food Ordinance, 1960, no court would be competent to take cognizance of the matter---Unauthorized acts could not be permitted---Constitutional petition was accepted and F.I.R. registered under S.420 of P.P.C. read with S.23-C of West Pakistan Pure Food Ordinance, 1960 was quashed.

Aurangzeb Ghumman for Petitioner.

Muhammad Aurangzeb Khan, A.A.-G. along with Ishtiaq, S.I. for Respondents.

2014 P Cr. L J 850

[Lahore]

Before Ijaz Ahmad and Muhammad Yawar Ali, JJ

SAIF ULLAH SALEEM ARSHAD---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.16056 of 2012, decided on 20th December, 2012.

Penal Code (XLV of 1860)---

----S. 324---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Attempt to commit qatl-e-amd, acts of terrorism---Mala fides alleged against doctor/medical officer who had examined injuries of victim---Proof---Accused filing application before Trial Court seeking constitution of a Medical Board to medically examine injuries of victim---Accused contended that doctor who medically examined the complainant issued a bogus medico-legal certificate in order to help the complainant in lodging of F.I.R.---Trial Court dismissed application of accused---Validity---Application filed by accused for constitution of Medical Board did not mention the particular mala fides, which were attributable to the doctor/medical officer who medically examined the complainant---For establishing a case of mala fides some specific allegations were necessary and they must be supported by some prima facie proof to set aside the impugned order of Trial Court---Accused had made a bald assertion stating that medical officer had been won-over by the complainant, and in the absence of specific allegations, no inquiry could be held in the present matter and no direction could be given for the constitution of a Medical Board---Application filed by accused before Trial Court was delayed by about 22 days and no plausible explanation was offered for such delay---Constitutional petition was dismissed in circumstances.

The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

Rana M. Asif Saeed and Ch. Muhammad Afzal Jatt for Petitioner.

2014 P Cr. L J 861

[Lahore]

Before Syed Iftikhar Hussain Shah, J

AMIR AFZAL---Appellant

Versus

SULTAN ABDUL IRSHAD and 5 others---Respondents

Criminal Appeal No.27 of 2011, decided on 31st October, 2013.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Scope--- Procedure--- Magistrate under S.249-A, Cr.P.C., was competent to acquit an accused at any stage of the trial, 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 of any offence---Under S.249-A, Cr.P.C., a hearing was required to be given to the prosecutor and the counsel for accused, and the reasons, were to be recorded in support of the conclusion.

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

----S. 249-A---Penal Code (XLV of 1860), Ss. 337-A(i)(ii), 354, 147 & 148---Causing Shajjah-i-Khafifah, Shajjah-i-Mudihah, assault or criminal force to woman with intent to outrage her modesty, rioting---Acquittal of accused under S. 249-A, Cr.P.C.---Precondition---Prosecution witnesses remained present before the Trial Court, but their deposition could not be recorded on one pretext or the other---Even on the date the impugned order was passed, the witnesses were present---Counsel for the complainant contended that the evidence should have been recorded in the presence of the complainant, (who was absent on the said date); and the Trial Court being annoyed over the said request, acquitted accused persons without giving notice to the prosecution and hearing the complainant---Hearing of the prosecutor and accused, as well, was precondition to the order of acquittal under S.249-A, Cr.P.C.---Trial Court had violated that mandatory provisions of Cr.P.C.; by not hearing the prosecutor before passing impugned order, which had indicated that no opportunity was given to the prosecution of being heard; and in an unsound and hasty manner, accused persons were acquitted---Impugned order was set aside and case was remanded to the Trial Court with direction to take up the proceedings afresh from the stage at which impugned order was passed.

Javed Akhtar Bhatti for Appellant.

Sardar Hassan Raza for Respondents Nos.1 to 5 with Respondent No.1 to 5 in person.

Muhammad Usman, Deputy Prosecutor-General for the State.

Date of hearing: 31st October, 2013.

2014 P Cr. L J 872

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

GHULAM MUSTAFA and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 296, 306-J, 307-J, 308-J, 309-J, 310-J, 321 of 2008 and Murder Reference No. 4 of 2009, heard on 23rd September, 2013.

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

----Ss. 302, 396, 397, 324, 337-F(v), 337-F(iii) & 34---Qatl-e-amd, dacoity with murder, robbery or dacoity, causing Hashimah, Mutalahima, common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was promptly lodged, but the names of the assailants were not mentioned---Complainant had named accused persons subsequently on having information provided by prosecution witness which was fatal to the prosecution case---Complainant and the prosecution witness, after due deliberation had introduced the names of accused persons---No explanation had been provided for making supplementary statement with delay---Identity of accused participating in the occurrence was not established from the evidence led by the prosecution---Statement of witness of 'Waj Takker', had no independent corroboration---Said witness on his own statement was residing at the distance of one acre from the place of occurrence; and in the dark night his identification qua accused was not beyond any shadow of doubt---Said witness made statement that he had identified accused persons while fleeing away with considerable delay---Reasonable doubts existed with regard to involvement of accused persons in the occurrence, benefit of doubt was to be extended in their favour---When identity of accused persons had not been established by the prosecution, other pieces of evidence, which were of corroboratory nature, could not be relied upon solely to hold that it was the accused persons who were armed with weapons; and had fired at the deceased and injured the prosecution witnesses---Prosecution having failed to bring home guilt of accused persons, there was no need to ponder upon the defence plea---Case of prosecution being not free from doubt, benefit of same was to be extended to accused persons---Impugned judgment was set aside---Accused persons were set at liberty.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 ref.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----S. 154---Information in cognizable cases---Subsequent statement---Effect---Report with subsequent statement made by complainant, could be treated as an improvement for falsely implicating the person, with due deliberation and consultation.

Mushtaq Hussain's case 2011 SCMR 45 rel.

Muhammad Nadeem Kanjoo for Appellants.

Syed Shahbaz Ali Rizvi for the Complainant.

Abdul Quddous, Deputy Prosecutor-General for the State.

Date of hearing: 23rd September, 2013.

2014 P Cr. L J 893

[Lahore]

Before Shahid Hameed Dar, J

GHULAM MUSTAFA alias BAGGI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3442-B of 2013, decided on 25th June, 2013.

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---Inefficiency and delay by police in sending medical evidence to concerned laboratories---Effect---Accused was alleged to have murdered his wife by strangulating her---Dead body of deceased was found in a putrefied state---Medical officer who performed autopsy on the body removed certain body parts and sealed them in parcels to send them to the police for further dispatch to Chemical Examiner and bacteriologist/ histopathologist---Said parcels were dispatched to laboratories by the police more than a year after they were received, which was a pathetic situation and reflected on the working and efficiency of the police---Expert reports from laboratories had not been received so far, therefore, medical evidence was still far from the stage of being a corroboratory piece of evidence---Trial of accused was at a nascent stage---Complainant took about 10 days to report the matter to the police and waited till such time that body of deceased was recovered from a far-off field---Co-accused had also been found innocent during investigation---Case against accused called for further probe---Accused was granted bail in circumstances with the observation that prosecution/complainant would be at liberty to apply for cancellation of bail granted to accused, once medical evidence in question got a proper shape and was revealed as incriminating/corroboratory material.

Muhammad Yar Khan Dah for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab.

Mehmood ul Hassan DSO/SDPO Arifwala.

Taqi Abbas Akhtar, Inspector/SHO Rang Shah and Muhammad Hussain A.S.-I.

2014 P Cr. L J 903

[Lahore]

Before Miss Aalia Neelum, J

MAJID KHAN---Petitioner

Versus

SESSIONS JUDGE, KASUR and 5 others---Respondents

Writ Petition No.27698 of 2013, decided on 19th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 164--- Constitution of Pakistan, Art. 199--- Constitutional petition---Second statement before Magistrate---Scope---Petitioner was involved in criminal case for abducting respondent---After recovery of respondent, she made statement before Magistrate and admitted that she had contracted marriage with petitioner with her free-will, later on respondent sought dissolution of marriage with petitioner---During pendency of proceedings, respondent filed application for recording her second statement under S.164, Cr.P.C.---Trial Court rejected the application but Lower Appellate Court in exercise of revisional jurisdiction allowed respondent to record her statement under S.164, Cr.P.C., before Magistrate---Validity---By filing suit for dissolution of marriage, respondent had admitted her Nikah with petitioner and belied prosecution story as narrated in F.I.R.---Respondent could not be permitted to change her stance by making false statement to achieve nefarious goal, as she wanted to make another statement under S.164, Cr.P.C. with some ulterior motive to entangle petitioner in further litigation---High Court set aside the order passed by Lower Appellate Court---Petition was allowed in circumstances.

Ch. Muhammad Din Ansari for Petitioner.

Ashfaq Ahmad Kharal, Assistant Advocate-General with Ali Akbar, Inspector and Muhammad Rafique, S.-I for Respondent No.1.

Basharat Ali Janjua for Respondent No.2.

2014 P Cr. L J 921

[Lahore]

Before Malik Shahzad Ahmad Khan and Mazhar Iqbal Sidhu, JJ

SHAH NAWAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.444 and Criminal Miscellaneous No.841-M of 2013, decided on 10th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b)/34---Qatl-e-amd, common intention---Suspension of sentence---Accused though was holding a pistol at the time of occurrence, but he did not cause any injury with the same to the deceased---Mortal fire shot injury had been attributed to co-accused---Injuries allegedly attributed to accused, which were simple in nature and which could be on account of fall, were not contributory to the death of the deceased--- When alleged Lalkara remained simpliciter, applicability of S.34, P.P.C. required serious appreciation---Ex facie, material/circumstances justified petition for suspension of sentence---Sentence inflicted upon accused, was suspended and he was allowed bail, in circumstances.

Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403 ref.

Sardar Muhammad Ishaq Khan-I, for Appellants.

Rana Kashif Saleem Arfa, Law Officer for the State.

Malik Waheed Anjum for the Complainant.

2014 P Cr. L J 940

[Lahore]

Before Mazhar Iqbal Sidhu and Ibad-ur-Rehman Lodhi, JJ

Sardar MUHAMMAD AMEEN KHAN and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.984-B and 1174-B of 2013, decided on 19th August, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, abetment and terrorism---Pre-arrest bail, grant of---Conspiracy/abetment---Proof---Abscondence of co-accused---No details of alleged conspiracy/abetment such as day, time and place were mentioned in F.I.R.---Effect---Petitioner was a practising lawyer and had joined investigation and was no more required for the same---On account of propinquity with co-accused, who allegedly physically participated in occurrence, chances of false implication of accused could not be ruled out, as the accused did not participate in occurrence---Life and liberty of a subject of State is more precious to a jewel and just to quench the thurst the law does not permit sending a person behind bars, and the law stands as a wall of glass to shield and save innocent persons from humiliation and from sending them behind bars---Abscondence of co-accused could not be attributed to accused---Pre-arrest bail was confirmed in circumstances.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 337-A(i)(ii) & 337-F(i)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, shajjah-i-khafifah, shajjah-i-mudihah, damihah and terrorism---Pre-arrest bail, grant of---Medical report and ocular account---Injury on non-vital part of body---Accused did not cause any injury to deceased and injury attributed to him regarding injured person mentioned in medical report was not found cohesion by his medico-legal report as doctor had opined that the injury was caused with blunt means---Injury attributed to accused was on non-vital part of body---Complainant had been observed nolo contendere qua the accused---Pre-arrest bail was confirmed, in circumstances.

Malik Waheed Anjum for Petitioners (in both Petitions).

Petitioner in person.

Muhammad Ilyas Siddiqui for the Complainant.

Raba Kashif Saleem Irfaa, Law Officer with Kazam Inspector.

2014 P Cr. L J 956

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD JAVED alias JUNAID---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.15420 of 2013, decided on 4th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 401 & 402-C---Penal Code (XLV of 1860), Ss.392 & 397---Pakistan Arms Ordinance (XX of 1965), S.13---Robbery, robbery or dacoity, with intent to cause death or grivous hurt, possessing unlicensed arms---Remission and running sentences concurrently---Petitioner/accused had sought direction to the effect that sentences awarded to him on different dates in different offences relating to different occurrences by courts at different places, to run concurrently; on the ground that facts and circumstances and nature of offences were not such which would not entitle him for the requisite relief---Validity---In the present case, sentence of seven years' R.I. was awarded under S.392, P.P.C. by the court of Additional Sessions Judge at place 'J' on 4-10-2011 on the basis of confessional statement; as well as the sentence of seven years' R.I. under S.397, P.P.C. was awarded by Judicial Magistrate at place 'T' on 7-6-2012; and seven years' R.I. under S.13 of Pakistan Arms Ordinance, 1961---Such sentences were not grave enough in their nature to persuade High Court to withhold its discretionary power to order regarding the said three sentences to run concurrently---High Court, in circumstances, directed that three sentences passed against the petitioner/accused would run concurrently, and not consecutively; and if whenever the petitioner had completed the sentences so declared, he would be released from the jail forthwith.

Ali Khan Kakar and 2 others v. Hammad Abbasi 2012 SCMR 334; Muhammad Ismail v. Superintendent, Central Prison, Peshawar and 3 others 2011 PCr.LJ 1340; Abdul Razzaq v. The State 2005 PCr.LJ 237 and Ghous Bakhsh and others v. The State 2012 PCr.LJ 1028 ref.

Ch. Iftikhar Ahmad for Petitioner.

Sittar Sahil, A.A.-G. for the State.

2014 P Cr. L J 993

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.168 of 2010 and Murder Reference No.366 of 2010, heard on 20th March, 2014.

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

----Ss. 302(b) & 201---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Accused made extra-judicial confession---After said confession, hardly there was any chance for consultation or deliberation---Complainant and the witnesses in a very straightforward manner had taken the accused to Police and lodged the report---Both the witnesses who had no enmity or motive to falsely implicate accused, remained consistent on the point that when the complainant informed accused that he intended to initiate legal proceedings, accused made extra-judicial confession---Accused being a single person, it was not expected from father of the deceased that he would involve some innocent person for the murder of his son; and it was not expected from him that he would let off the real culprit and substitute accused with whom he had no enmity or ill-will---Confession of accused was confirmed by medical evidence and Chemical Examiner's report---Recovery of dead body of deceased, on the pointation of accused, was a strong piece of evidence, which corroborated the extra-judicial confession---Witnesses of the recovery, remained consistent on each and every material point---Recovery of belongings of the deceased, also corroborated the extra-judicial confession made by accused because those articles were recovered on the disclosure and pointation of accused---Witnesses of extra-judicial confession, recovery witnesses and the medical evidence successfully proved the prosecution case on the basis of circumstantial evidence, which was linked with each other and was not broken from any place---Evidence produced by prosecution was confidence-inspiring, prosecution remained successful in proving that accused had committed the murder of the deceased by strangulating him with an iron wire---Accused did not point out any enmity of the witnesses with him, and the witnesses had no reason or motive to falsely implicate him---Accused being a single person, in such like cases, substitution was a rare phenomenon---Accused had committed the murder of a child for committing the unnatural act with him---Accused having acted in a very brutal manner, he did not deserve any mitigation in sentence---Trial Court, in circumstances, had rightly convicted and sentenced the accused.

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

----S. 164--- Extra-judicial confession--- Scope--- Extra-judicial confession was normally considered as a weak type of evidence, but conviction could be passed on such extra-judicial confession, if it was made voluntarily.

Naveed Anwar Chaudhary for Appellant.

Mirza Abid Majeed, D.P.-G. for the State.

Malik Rab Nawaz for the Complainant.

Date of hearing: 20th March, 2014.

2014 P Cr. L J 1030

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD AKRAM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, DEPALPUR and 3 others---Respondents

Writ Petition No.25136 of 2012, decided on 28th June, 2013.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.561-A & 176(2)---Constitutional petition---Exhumation of a dead body from grave for post-mortem examination---Right of legal heirs of the dead body---Scope---Deceased-lady was buried after dying in suspicious circumstances--- Respondent made an application to the Magistrate for exhumation of deceased's body for conducting a post-mortem examination so as to ascertain her cause of death---Said application was allowed by the Magistrate---Revisional petition filed against order of Magistrate was dismissed---Plea of deceased's husband/petitioner that he did not want to get exhumation of the dead body, and that being the sole owner of the dead body, he did not want to humiliate and disrespect it---Validity---Legal heirs of the deceased/dead body were the trustees of her grave, who had to maintain not only the grave but also the respect and dignity of the dead body---Respondent had also been making efforts for exhumation of the dead body with the intention of blackmailing deceased's husband and others---Constitutional petition was allowed in circumstances and orders passed by Magistrate and Revisional Court were set aside.

Abdul Rauf for Petitioner.

Ms. Tehseen Irfan, A.A.-G.

Sharafat Ali Sidhu and Rai Khadim Hussain Kharal for Respondent No.3.

2014 P Cr. L J 1041

[Lahore]

Before Ibad-ur-Rehman Lodhi and M. Sohail Iqbal Bhatti, JJ

FAIZAN AHMED KHAN and others---Petitioners

Versus

The STATE and others---Respondents

Writ Petitions Nos.139, 234, 267, 278 and 279 of 2014, decided on 19th March, 2014.

(a) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss. 302, 324, 436, 384, 186, 188, 342, 353, 295, 295-B, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitutional petition---Bail, grant of---Sect based violence---General allegations---Implication through supplementary statement of witnesses---Case of vicarious liability---Delay in conclusion of trial---Effect---Petitioner-accused persons who belonged to a particular sect were part of a religious procession which passed through a madrassa, belonging to another sect---Deadly altercation took place between the participants of the procession and people inside the madrassa---During the occurrence participants of the procession also detained police officials and snatched their weapons---Interim report of the incident was submitted after about one month of the occurrence but the column regarding name of witnesses was blank---Petitioners were implicated through supplementary statements of witnesses---Individuals whose supplementary statements were recorded under S. 161, Cr.P.C., were not mentioned as witnesses in the F.I.R.---Allegations against the petitioners were general in nature such as hurling of bricks, raising of slogans, instigating others, making weird signs, causing mischief by fire etc.---One of the petitioners also suffered a firearm injury during the occurrence---F.I.R. was recorded ten hours after the incident but it was silent as to the presence of any police witnesses, therefore veracity of prosecution case was under a cloud of doubt unless police witnesses entered the witness box and underwent the test of cross-examination---Prosecution admitted that role of different petitioners during the occurrence would only be differentiated during trial---Although a snatched police weapon was recovered, but from a co-accused and not from any of the petitioners---None of the petitioners was alleged to have entered the madrassa---Applicability of provisions of Anti-Terrorism Act, 1997 would only be decided once evidence from both sides was recorded---Contents of F.I.R. did not make it clear as to which side started the initial offending act---Even if prosecution version was believed, cases of petitioners were of vicarious liability, which could be determined by the Trial court after recording of evidence---Trial of petitioners had not started as yet, and its conclusion was not in sight---Constitutional petition was allowed in circumstances and petitioners-accused persons were admitted to bail.

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

----Ss. 497 & 161---Bail---Offence falling within prohibitory clause of S. 497, Cr.P.C.---Implication of accused based on supplementary statement---Effect---Benefit of doubt---Where name of accused had not been mentioned in the F.I.R. and appeared subsequently as a result of supplementary statements, then a reasonable doubt would be available---Wherever reasonable doubt was noticed and the matter required deeper appreciation of evidence, bail could be granted to the accused even with reference to offences which fell within the prohibitory clause.

Muhammad Ilyas Sidiqui for Petitioner (in Writ Petition No.234 of 2014).

Syed Zulfiqar Abbas Naqvi for Petitioner (in Writ Petition No.267 and 278 of 2014).

Raja Ikram Amin Minhas for Petitioner (in Writ Petition No.279 of 2014).

Sardar Muhammad Ishaq Khan, Special Public Prosecutor, Muhammad Khan, Inspector and Muhammad Arif, S.-I. with record for the State.

Date of hearing: 19th March, 2014.

2014 P Cr. L J 1062

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

YOUNAS---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.1545 of 2014, decided on 5th March, 2014.

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

----Ss. 6(2)(m), (n) & 23---Constitution of Pakistan, Art. 199---Constitutional petition---"Terrorism", meaning of---Scope---Exchange of fire with police contingent---Doubts regarding element of serious violence against police---Accused persons, 17 in number, allegedly made indiscriminate firing upon a police contingent, snatched an official rifle and ammunition, and used force and coercion to rescue one of the accused from the police---Despite the fact that firing upon police contingent was made by 17 persons, no police official received a single scratch---None of the accused received any fire shot injury at the hands of police---Uniform of none of the police officials was torn---In presence of a reasonable police contingent, it was not comprehendible as to how official arm and ammunition was snatched and as to how accused persons managed to rescue one of theirs from the police---Element of involvement of serious violence against police was lacking in such circumstances---Provisions of Anti-Terrorism Act, 1997, were not applicable in the present case---Case of accused persons was ordered to be transferred from Anti-Terrorism Court to the court of plenary jurisdiction---Constitutional petition was allowed accordingly.

Taj Muhammad v. Judge, Anti-Terrorism Court and another PLD 2003 Lah. 588 rel.

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

----Ss. 6(1)(b) & (c)---"Terrorism", meaning of---Scope---For an act to fall within the definition of "terrorism", nexus of the actions of the wrongdoer must be to terrorize the public in general and to spread the sense of fear and insecurity in the particular community or sect of people.

Syed Ferhad Ali Shah for Petitioner.

Ch. Muhammad Shabbir Gujjar, A.A.-G. along with Liaqat Ali S.-I. and Sher Bar, S.-I. for the State.

2014 P Cr. L J 1084

[Lahore]

Before Shahid Hameed Dar and Syed Iftikhar Hussain Shah, JJ

Malik MUHAMMAD ISHAQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2627/B of 2014, decided on 20th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 295-A---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16---Anti-Terrorism Act (XXVII of 1997), S.9---Deliberate and malicious act intended to outrage religious feelings, stirring up sectarian hatred and disrupting public peace---Bail, grant of---Administration of justice---Accused had been detained under various preventive detention orders since 22-5-2013, and he, despite having been granted bail in various cases registered under S.16 of West Pakistan Maintenance of Public Order Ordinance, 1960, and Ss. 188 & 295-A, P.P.C. by different Courts of law, had not been released from prison---Validity---Accused did not condemn or abuse or verbally attack the sect, rather he spoke in praise of the pious companions (may the Almighty be pleased with them) of the Holy Prophet Muhammad (Peace Be Upon Him) by referring to various verses from the glorious Qur'an with the pledge that their dignity, nobility and eminence was to be defended, the way it ought to be---Any person could follow any school of thought as regarded by the faith and could keep allegiance with any sect but it had to be remembered that survival as nation was only in sactarian harmony, inter-faith coherence and on the principle of 'live and let live'---No one could be left to rot in jail for an indefinite period of time to satisfy a grudge, whimsical or otherwise, of anyone---Justice could not be allowed to be brutalized to curtail life and liberty of any individual, who was hard nut to crack by police---Period of incarceration of accused, if extended, would serve no useful purpose---Bail was allowed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner.

Khurram Khan, Deputy Prosecutor-General Punjab with Muhammad Asghar, DSP (Legal) and Muhammad Farooq, S.-I. for the State.

2014 P Cr. L J 1111

[Lahore]

Before Mazhar Iqbal Sidhu, J

SHAHID MEHMOOD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.210 and Criminal Revision No.268 of 2011, heard on 10th January, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Case was registered against eight persons, but except the accused, all others were acquitted---Out of five eye-witnesses, examined during the trial, four were injured, but testimonies of said injured prosecution witnesses had been disbelieved twice; and injuries allegedly caused to them could not be taken as gospel truth---Prolonged abscondence of accused had been explained by him in his statement under S.342, Cr.P.C.---No penalty has been prescribed for abscondence of accused, shorter or prolonged---Innocent person would opt to abscond to avoid maltreatment of the Police---Prosecution having not been able to prove its case against accused beyond reasonable doubt, judgment of conviction and sentence rendered by the Trial Court, were set aside---Accused was acquitted of the charges imputed, he was set at liberty, in circumstances.

Muhammad Akram v. The State 2012 SCMR 440 and Ziaullah alias Jajj v. The State 2008 SCMR 1210 ref.

Ch. Imran Raza Chadhar for Appellants.

Shehzad Saleem Warraich for the Complainant.

Muhammad Akhlaq, D.P.-G. for the State.

Date of hearing: 10th January, 2014.

2014 P Cr. L J 1133

[Lahore]

Before Muhammad Tariq Abbasi, J

ABDUL SATTAR KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.117 of 2013, heard on 19th March, 2014.

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

----Ss. 200, 435 & 439-A---Revision petition filed against dismissal of a private complaint by the Judicial Magistrate---Forum---Although under S. 439-A, Cr.P.C. the Sessions Court concerned also had power to entertain a revision petition (filed against dismissal of a private complaint by the Judicial Magistrate), however if such a revision petition was filed (directly) before the High Court, even then it was quite competent and maintainable.

Haji Jamil Hussain v. Illaqa Magistrate Section 30, Multan and 7 others 2012 PCr.LJ 159 ref.

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

----S. 200---Private complaint---Examination of complainant by the Magistrate---Scope---Complainant must bring on record whatever substance and material he had for evaluation by the Magistrate.

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

----Ss. 200, 202, 203 & 204--- Private complaint--- Dismissal of complaint or issue of process, order for---Material/evidence to be considered by Judicial Magistrate before passing such orders---Order under S. 203 or S.204, Cr.P.C. should be made only while considering the material brought on record during cursory evidence and that which was a result of investigation or inquiry, if any, under S. 202, Cr.P.C.---No other material was to be considered for such purposes---Where Judicial Magistrate dismissed private complaint on the basis of material, which was not on the file of the private complaint, but part of the State case, which already had been cancelled, then such an order would not be valid and justified.

Mian Fazal Hussain Bhatti for Petitioner.

Hassan Mehmood Khan Tareen, D.P.-G. and Mazhar Jamil Qureshi, A.A.-G. for the State.

Ch. Liaqat Ali Gujjar for Respondents Nos.2 to 5.

Date of hearing: 19th March, 2014.

2014 P Cr. L J 1146

[Lahore]

Before Muhammad Tariq Abbasi, J

MUREED HUSSAIN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE JAMPUR and 3 others---Respondents

Writ Petition No.9076 of 2013, heard on 25th March, 2014.

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

----Ss. 22-A, 22-B & 154---Ex-Officio Justice of Peace---Calling of police report before issuing directions for registration of F.I.R.---Scope---Ex-Officio Justice of Peace was not bound to seek report from the police at every cost and he was fully competent to decide the application and pass an order, even without any report by the police---However when a report was called, to know the truth and real facts, then the same should not be ignored---Where Ex-Officio Justice of Peace did not agree with the police report, then he should give reasons for doing so---Seeking and obtaining a police report but subsequently ignoring the same and passing an order, contrary to it, without assigning any reason could not be appreciated---Special care was required in such a situation.

Khizar Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470 rel.

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

----Ss. 22-A & 22-B--- Constitution of Pakistan, Art. 199---Constitutional petition---Ex-Officio Justice of Peace calling for police report but ignoring same without assigning any reasons---Legality---Ex-Officio Justice of Peace failed to give weight to the police report, (which he himself called for) and failed to even discuss same and preferred to issue directions to police for recording statement of complainant under S. 154, Cr.P.C.---Police report was important so that real facts came on the record, but in the present case, Ex-Officio Justice of Peace sought report from police and despite its availability, ignored the same and failed to give reasons for not believing the same---Record showed that allegations made by complainant were not true---Police report showed that complainant's son was involved in an F.I.R. lodged by the accused-petitioner, therefore possibility of moving an application before Ex-Officio Justice of Peace for registration of case against petitioner-accused while concocting a false story could not be ruled out---Constitutional petition was allowed and impugned order of Ex-Officio Justice of Peace was set aside and application for registration of case was dismissed.

Nasir-ud-Din Mahmood Ghazlani for Petitioner.

Hafiz Muhammad Naveed Akhtar for Respondent No.2.

Mazhar Jamil Qureshi, A.A.-G. with Abdul Rehman, A.S.-I. for the State.

Date of hearing: 25th March, 2014.

2014 P Cr. L J 1164

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Abdul Sami Khan, JJ

IFTIKHAR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.41-J and Murder Reference No.108/RWP of 2009, heard on 10th September, 2013.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence---Mitigating circumstances---Quantum of sentence---Benefit of doubt---Motive, proof of---Accused was convicted and sentenced to death by Trial Court---Validity---Motive set up by complainant in F.I.R. was that there was dispute over impounding of buffaloes belonging to deceased by accused in his cattle compound and scuffle took place between them which resulted into death of deceased at the hands of accused---Accused tried to defeat motive set up by prosecution while putting forward a fragile plea that he had been booked by complainant due to dispute of property but such plea had not be substantiated by any material by defence---Certain extenuating circumstances existed which suggested that it was not a case of capital sentence as motive was specifically alleged by prosecution but the same had not been proved by any element of premeditation on the part of accused or any plan in his mind to commit murder of his real brother especially within the vicinity where parties to the case were living---Occurrence was result of sudden flare-up at the spur of moment between deceased and accused on a petty matter of detaining buffaloes belonging to deceased in compound of cattle of accused---Accused had caused only one injury on the person of deceased and did not repeat the same---High Court maintained conviction but converted death sentence into imprisonment for life---Appeal was allowed accordingly.

Ahmad Nawaz and another v. The State 2011 SCMR 593 ref.

(b) Criminal trial---

----Sentence---Benefit of doubt---Scope---Accused is entitled to benefit of doubt as an extenuating circumstance, while deciding question of his sentence.

Mir Muhammad alias Miro 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.

Raja Ghaneem Aabir Khan for Appellant assisted by Malik Abdul Qayyum Khan at State Expenses.

Rana Kashif Saleem Arfa, Law Officer for the State.

Date of hearing: 10th September, 2013.

2014 P Cr. L J 1179

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD YASEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10439/B of 2013, decided on 5th November, 2013.

(a) 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---Conflict between ocular and medical evidence---Statutory delay in conclusion of trial---Lack of forensic report qua recovered weapon---Delay in filing private complaint---Effect---Accused was alleged to have fired at the chest of the deceased, but as per postmortem report there was an exit wound on the chest, and such conflict made the case against accused one of further inquiry---Although weapon had been recovered from accused but report of Forensic Science Laboratory was missing in such regard---Complainant after lapse of one year and seven months filed a private complaint for which not a single witness had been recorded so far---Complainant could not be given license to choose the time of prosecution against accused according to his own choice---Early conclusion of trial of the present case was not in sight---Accused was in jail for more than two years without recording of a single prosecution witness---Accused was admitted to bail in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Saeed Khan v. The State and another 2011 SCMR 1392; Barkhurdar v. Liaqat Ali and 2 others PLD 1977 SC 434; Riasat Ali and another v. The State PLD 1977 SC 480 and Saleem Akhtar v. The State PLD 1980 Lah. 127 rel.

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

----Ss. 369, 497 & 498---Bail application, disposal of---Section 369, Cr.P.C., applicability of---Disposal of bail application was not hit by provisions of S. 369, Cr.P.C. and as such, any finding in such regard was not conclusive in nature.

Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 and Ali Sheharyar v. The State 2008 SCMR 1448 rel.

Muhammad Shehryar Sidhu for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General with Amanat Ali, A.S.-I. for the State.

Ch. Muhammad Qasim for the Complainant.

2014 P Cr. L J 1188

[Lahore]

Before Arshad Mahmood Tabassum, J

GHULAM ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.297 of 2013, heard on 6th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 202---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Private complaint---Court witness, calling of---Procedure---Complainant was dissatisfied with police investigation and preferred private complaint against accused---Trial in state case was kept pending and complaint case proceeded---Accused filed application for summoning a witness cited in calendar of witnesses in state case, as Court witness in complaint case---Validity---Witness sought to be examined as Court witness by accused was mentioned in calendar of witnesses of state case, therefore, he was liable to be summoned and examined as Court witness in private complaint---To examine prosecution witness cited in state case as Court witness in private complaint did not require submission of application by any party rather it was for the Court itself to summon such a witness and examine him to do complete justice between parties---High Court directed Trial Court to summon witness in question as Court witness to record his statement after affording fair opportunity to both parties to cross-examine that witness---Revision was allowed in circumstances.

Nur Elahi's case PLD 1966 SC 708 fol.

Malik Altaf Hussain Rawn for Petitioner.

Allah Bakhsh Khan Kulachi for the Complainant.

Shaukat Ali Ghauri, Additional P.-G. for the State.

Date of hearing: 6th November, 2013.

2014 P Cr. L J 1201

[Lahore]

Before Kh. Imtiaz Ahmad, J

Dr. NIAZ AHMAD---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER and others---Respondents

Writ Petition No.1467 of 2010, decided on 21st April, 2010.

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

----Ss. 6(3) & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention--- Departmental representation---Petitioner assailed notification of his preventive detention passed by authorities---Contention of authorities was that petitioner had alternate remedy of representation available to him---Validity---Authorities committed with High Court that if the representation was filed the same would be processed and decided in accordance with law by them expeditiously after affording opportunity of hearing---Authorities were empowered under S. 6(3) of West Pakistan Maintenance of Public Order Ordinance, 1960, to rescind detention order---High Court directed the petitioner to forward his representation to authorities to be considered and disposed of in accordance with law by authorities---Petition was dismissed in circumstances.

2006 PCr.LJ 127; 2000 MLD 1494; 2002 SCMR 914; PLD 2005 Kar. 538; 2000 MLD 1252; PLD 2000 Lah. 194; PLD 2006 Lah. 111; 1989 PCr.LJ 1569; PLD 1992 Lah. 140; PLD 1973 Kar. 344; PLD 1965 Lah. 135 and 1993 SCMR 1810 ref.

PLD 2006 Lah. 272; 2001 PCr.LJ 1727; PLJ 2004 Lahore 1221 and The Province of East Pakistan and others v. Siraj-ul-Haq Patwari and others PLD 1966 SC 854 rel.

Muhammad Ilyas Siddiqui for Petitioner.

Razzaq A. Mirza, Additional A.-G.

Raja Khurshid Ahmad Satti, A.A.-G.

Sh. Muhammad Munir, D.P.-G.

Fida Hussain, DSP.

2014 P Cr. L J 1211

[Lahore]

Before Shezada Mazhar, J

Mst. WAQAR-UN-NISA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5140-B of 2013, decided on 23rd May, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Ad-interim pre-arrest bail, confirmation of---Female accused---Non-attribution of any overt act or fire shot---Mala fides of complainant---Probability of false implication---Effect---Accused, who was a female, was alleged to have participated in a murderous attack---Only allegation against accused was that she was present in the car at the time of occurrence---Accused was not attributed any weapon or fire shot in the F.I.R.---Mala fide of complainant was obvious due to the fact that complainant had launched an F.I.R. for the murder of her parents against one of the injured of the present case---Detailed investigation was conducted in the present case, wherein it was found that accused had not participated in the occurrence in any manner, and such findings of the investigating agency had not been challenged by the complainant before any higher forum---Possibility could not be ruled out that prosecution had thrown a wider net to involve many male members of the family of the accused---Investigation of the case was complete and nothing was to be recovered from the accused---Ad-interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----S. 498---Pre-arrest bail---Mala fide of complainant, evaluation of---Scope---Court could look into and evaluate mala fide of complainant from the facts and circumstances of the case.

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

----S. 498---Pre-arrest bail---Principles---Apprehension of arrest of accused for ulterior motives, such as humiliation and unjustified harassment were sine qua non for pre-arrest bail.

Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 302---Pre-arrest bail in a murder case---Principles---Nomination of a person in the F.I.R.---Effect---Mere mentioning of name of any person in an F.I.R. of murder case did not disentitle him/her for grant of pre-arrest bail.

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

----S. 498---Pre-arrest bail---Evaluation of evidence---Scope---Court while deciding (pre-arrest bail) petition could examine the accusations, report of investigating agency and even touch upon the merits of the case.

Meeran Bux v. The State and another PLD 1989 SC 347 and Muhammad Riaz Minhas v. The State 1990 PCr.LJ 1353 rel.

M. Irfan Malik for Petitioner.

Shahid Bashir, Deputy Prosecutor-General Punjab.

Aurangzaib Maral for the Complainant.

Muhammad Mushtaq, S.-I. with the Police Record.

2014 P Cr. L J 1226

[Lahore]

Before Miss Aalia Neelum, J

Raja NADEEM RAFIQUE---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5772-B of 2013, decided on 3rd July, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Ad-interim pre-arrest bail, recalling of---Plea of alibi taken at bail stage---Relevance---Accused was alleged to have been present at the spot and fired at the head of the deceased---Plea of accused that at the time of occurrence he was not in the country, which fact was supported by documentary evidence---Validity---Plea of alibi could not be judged at bail stage---Even otherwise police verified that picture of accused at the time of his departure from the country was available but there was no picture of his arrival back in the country---Investigating Officer came to the conclusion that accused was an ex-commando of police department, who knew all modes to save himself---Incident took place on 10-11-2012, and accused failed to explain as to why he went out of the country on 9-11-2012 and returned back on 16-11-2012, however such aspect need not be gone into at bail stage as matter was still under investigation---Accused remained a fugitive from law for almost 95 days after dismissal of bail before arrest by the Trial Court---Ample evidence was available on record to connect accused with the offence alleged, which even otherwise fell within the prohibitory clause of S. 497, Cr.P.C.---Pre-arrest bail granted to accused was recalled.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 distinguished.

Mudassar Altaf and another v. The State 2010 SCMR 1861 and Waqar-ul-Haq v. The State 1985 SCMR 974 rel.

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

----Ss. 497 & 498---Bail---Plea of alibi---Relevance---Plea of alibi could not be judged at bail stage.

Waqar-ul-Haq v. The State 1985 SCMR 974 rel.

Zafar Mahmood Chaudhary for Petitioner in person.

Ch. Muhammad Mustafa, DPG, Ameer Masud, ASP and Amanat Ali S.-I. along with record for the State.

Pir S.A. Rashid for the Complainant.

2014 P Cr. L J 1238

[Lahore]

Before Syed Iftikhar Hussain Shah and Zafar Ullah Khan Khakwani, JJ

MUHAMMAD NAEEM WATTU---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.251 of 2014, decided on 1st April, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K, 439 & 561-A---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, or by banker, corruption---Dismissal of application for acquittal under S.265-K, Cr.P.C.---Validity---Alleged embezzled amount was colossally huge---Recovery though was corroborative piece of evidence, but, if there was any other convincing, direct or indirect evidence available on record to prove culpability of accused, then absence of the same would not in any way be beneficial for accused facilitating him for the benefit of acquittal---Law having provided an inquiry into the offence for which accused had been sent up for trial, procedure prescribed by law for deciding the fate of accused should be allowed to be carried out, unless some extraordinary circumstances existed to abandon the regular course and to follow exceptional route---After arrest of accused, certain amount was deposited in bank account on his behalf, which prima facie displayed his involvement in the crime---Accused during investigation having been found involved in the commission of crime, without affording the prosecution proper time to prove its case, it could not be said that prosecution had no case against accused---Accused could be acquitted by Trial Court at any stage of the trial, but that power could be exercised only, if the court would come to the conclusion after hearing the prosecutor and accused that the charge was groundless; and there was no probability of accused being convicted---Investigating Agency in the case had collected certain evidence/material which prima facie had shown that accused had committed the crime---At such an early stage it could not be said that the prosecution had no material to establish guilt of accused, or that the charge against accused was groundless---In absence of any illegality/irregularity in the impugned order passed by the court below, said order could not be interfered with.

The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 ref.

Ch. Anwar ul Haq Pannu for Petitioner.

2014 P Cr. L J 1252

[Lahore]

Before Abdus Sattar Asghar and Muhammad Anwaarul Haq, JJ

SHEHRIYAR ALAM---Petitioner

Versus

JUDGE, SPECIAL COURT (OFFENCES IN RESPECT OF BANKS) PUNJAB, LAHORE and 2 others---Respondents

Criminal Miscellaneous No.307-CB of 2013, decided on 6th May, 2014.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Petition for cancellation of pre-arrest bail, dismissal of---Co-accused allegedly opened a bank account, wherein he deposited stolen cheques and encashed the same---Allegation against accused was that he received the amounts from the said cheques on behalf of the co-accused---Banking Court granted pre-arrest bail to the accused---Validity---Account from which amounts were withdrawn was a sole proprietorship account maintained by the co-accused---No incriminating material was available with the prosecution to establish any nexus of accused with regard to opening and maintenance of the said account---Allegedly stolen cheques were issued by the co-accused in his own favour---Investigating officer had declared accused as innocent being not beneficiary of the allegedly withdrawn amounts---Bail granting order was not perverse in such circumstances--- Petition for cancellation of pre-arrest bail awarded to accused was dismissed accordingly.

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

----S. 497(5)---Cancellation of bail, petition for---Grounds taken into consideration by the court.

Following are the grounds which are taken into consideration by the court for cancellation of bail:--

(i) That accused had misused the concession of bail and was causing fear and alarm to the complainant and the prosecution witnesses;

(ii) That there was likelihood of witnesses being won-over and their evidence being tampered with;

(iii) That there was likelihood of repetition of the commission of the crime which the accused had allegedly committed;

(iv) That accused was likely to abscond; and

(v) That order granting bail was arbitrary, capricious and against the evidence available with the prosecution.

Once bail had been granted on merits by the court of competent jurisdiction, very strong and exceptional circumstances were required to cancel the same.

Abdul Rasheed Khan v. Zahoor Ahmed Malik and others PLD 2011 SC 210 rel.

Muhammad Ahmad Pansota for Petitioner.

Muhammad Sohail Standing Counsel for Pakistan.

Muhammad Aftab Butt, Assistant Director FIA and Irshad Ahmad Inspector, FIA for Respondents.

2014 P Cr. L J 1273

[Lahore]

Before Sadaqat Ali Khan, J

MUHAMMAD SHAHID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.18 of 2009, heard on 20th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 316 & 109---Qatl-e-amd, qatl shibh-i-amd, abetment---Appreciation of evidence---Benefit of doubt---F.I.R. was registered two hours and fifteen minutes after the occurrence---Abrasion (injury) noted on the dead body of the deceased, according to doctor, was not ante-mortem, but was caused after the death of the deceased---Conflict existing between medical and oral evidence, preference was to be given to medical evidence---Investigating Officer, stated before the court that during the investigation, he found that the deceased died natural death; and that accused along with his co-accused was found innocent during the investigation, and nothing was recovered from him---Prosecution could not prove that injury noted on the dead body of the deceased was ante-mortem and was primary, proximate and immediate cause of death of the deceased---Co-accused were acquitted by the Trial Court and the complainant had not filed any appeal against their acquittal---Prosecution had filed to bring home guilt of accused to the hilt---Trial Court was not justified in convicting accused while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses, which even otherwise was full of material contradictions especially unreliable story was deposed by the prosecution witnesses---Extending benefit of doubt in favour of accused, his conviction and sentence awarded by the Trial Court were set aside, accused was acquitted of the charge and he being on bail, his surety stood discharged.

Mukhtar alias Mukhee v. The State 2001 YLR 1479 rel.

Mian Faiz ul Hassan for Appellant.

Khalid Pervaiz Uppal, D.P.-G. for the State.

Date of hearing: 20th March, 2014.

2014 P Cr. L J 1293

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD SIDDIQUE---Appellant

Versus

MUNIR AHMAD and 8 others---Respondents

Criminal Appeal No.785 of 2012, decided on 13th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 380, 440 & 447---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal Procedure Code (V of 1898), S. 417(2A)---Appeal against acquittal---Appreciation of evidence---Investigating officer not appearing before court during trial to record his statement---Complainant making no effort before Trial Court for summoning the investigating officer---Presumption---Prosecution was duty bound to adduce all relevant evidence in the court but the same was not done and the witness (i.e. investigating officer) was withheld---Presumption in such circumstances would be that had the witness (i.e. investigating officer) appeared in the court, he might not have supported the prosecution case---Appeal against acquittal of accused persons was dismissed accordingly.

Mian Tariq Hussain for Appellant.

2014 P Cr. L J 1305

[Lahore]

Before Muhammad Anwaarul Haq, J

UMAIR ASLAM---Petitioner

Versus

STATION HOUSE OFFICER and 7 others---Respondents

Writ Petition No.19131 of 2013, decided on 28th February, 2014.

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

----S. 154---Penal Code (XLV of 1860), S. 406---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Civil dispute---General allegation---Dishonest misappropriation of property---F.I.R. did not disclose commission of offence under S. 406, P.P.C. as there was no specific entrustment of property to any of the accused and there was a general allegation that all the accused had received the money from the complainant---Even otherwise, if at all disputed amount mentioned in the F.I.R. was given in the backdrop of a property deal and the accused were not ready for execution of sale deed, it was only a matter to be resolved by the civil court---Complainant had not filed any suit for specific performance against the accused for such purpose---Pendency of criminal proceedings on the basis of impugned F.I.R. was sheer abuse of the process of law---Constitutional petition was allowed in circumstances and proceedings under the impugned F.I.R. were quashed.

Hafiz Muhammad Iqbal v. The State and another 2009 PCr.LJ 934 and Dr. Nasir Ali v. S.H.O. Police Station Ghulam Muhammadabad Faisalabad and others 2006 PCr.LJ 1636 rel.

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

----Ss. 154 & 173---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Challan already submitted before Trial Court---Framing of charge in a case by the Trial Court did not debar burying of the proceedings by way of quashment (of F.I.R.)---No invariable rule of law existed in such regard and it depended on the facts of each case whether to allow the proceedings to continue or nip the same in the bud.

Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141 rel.

Muhammad Anas Ghazi for Petitioner.

Raza-ul-Karim Butt, Assistant Advocate-General along with Ijaz Ahmad, S.-I. with record.

Rasheed Ahmad Sulehria for Respondent No.2/Complainant.

2014 P Cr. L J 1321

[Lahore]

Before Mehmood Maqbool Bajwa and Ali Baqar Najafi, JJ

Rana AMIR NADEEM ARSHAD---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, PUNJAB through Director-General and another---Respondents

Writ Petition No.4612 of 2014, decided on 4th June, 2014.

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

----S. 9(b)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction--- Scope--- Bail, grant of--- Scope--- Constitutional jurisdiction can be exercised in order to grant bail in appropriate cases independently of any statutory provisions available under National Accountability Ordinance, 1999.

Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266 rel.

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

----S. 9(a)(ix)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Petitioner was arrested on the allegation of cheating members of public at large---Petitioner was running a forex company and sought investment form members of public at large, which investment was deposited by him with another forex company and owner of that other forex company had committed fraud with petitioner and many others---Plea raised by petitioner was that he himself was an affectee and had filed his claim against principal accused who was facing trial before same Court---Petitioner raised further plea that he had been permitted by Trial Court to appear as prosecution witness against principal accused---Contention of National Accountability Bureau was that petitioner had in fact admitted his guilt---Validity---Though there was an admission on the part of petitioner regarding his liability which he owed to different claimants but such admission by itself was not sufficient to decline relief keeping in view the defence which had to be considered in its totality---Claim of Rs.120 million, which was against another accused was deferred by National Accountability Bureau keeping in view his stance that he had invested his amount with principal accused---High Court enabled petitioner to prepare his defence not only in reference pending against him but also to prove his claim in reference against principal accused being one of the affectees---Bail was allowed in circumstances.

Makhdoom Javed Hashmi v. The State and 2 others 2003 PCr.LJ 266 rel.

Qazi Misbah ul Hassan for Petitioner.

Syed Faisal Raza Bukhari, Legal Consultant for the National Accountability Bureau.

2014 P Cr. L J 1335

[Lahore]

Before Syed Iftikhar Hussain Shah and Zafarullah Khan Khakwani, JJ

ABDUL SATTAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.4783-B of 2014, decided on 16th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Border line case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Accused was allegedly found in possession of 1050 grams of charas, which was slightly on the upper limit of quantity prescribed under S. 9(b) of Control of Narcotic Substances Act, 1997---Record did not show as to whether contraband was weighed after its removal from the shopper wherein it was allegedly kept---Exact quantity of narcotic thus remained unascertained---Investigation of the case was complete---Report of Chemical Examiner was still awaited---Accused was a previous non-convict---Case was one of further inquiry, therefore accused was granted bail.

Muhammad Tanvir Ch. for Petitioner.

Muhammad Amjad Rafiq, D.P.-G. along with Tariq Gondal, S.-I. for the State.

2014 P Cr. L J 1344

[Lahore]

Before Muhammad Anwaarul Haq and Ibad ur Rehman Lodhi, JJ

IBRAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.194 of 2014, heard on 20th February, 2014.

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

----Ss. 9(c), 32(2) & 48---Possessing and trafficking narcotics---Confiscation of vehicle---Car in question taken into custody on the allegation that same was being used by appellant/accused in the commission of crime, was confiscated in favour of State and its auction was also ordered---Said car was given to appellant in superdari by Special Court, but ignoring such aspect of the matter; and also violating the process of issuance of notice to the appellant/owner and to enquire into the matter, confiscation of the car was ordered by the Special Court---Impugned judgment to the extent of confiscation of car was nullity in the eye of law, and was not sustainable---To such extent impugned order was set aside, and matter was remanded to the Special Court with the direction, first to issue notice to the owner of car, and then to conduct a discrete inquiry, while maintaining superdari with the appellant; and thereafter pass an order with regard to disposal of car.

Hammad Akbar Wallana for Appellant.

Tariq Saleem Sheikh, Special Prosecutor for ANF.

Date of hearing: 20th February, 2014.

2014 P Cr. L J 1352

[Lahore]

Before Muhammad Tariq Abbasi, J

NASIR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.218 of 2013, heard on 13th May, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 464, 465 & 466---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Plea of mental illness---Prayer for constitution of Medical Board---Petitioner/accused who claimed to be suffering from serious mental illness prior to the occurrence, filed application to the effect that to determine his mental health, Medical Board be constituted; and that record of Institute of Mental Health in which he remained admitted be summoned---Said application of accused, having been dismissed by the Trial Court---Validity---Trial Court, which firstly had to know about mental condition of accused, had already carried on the preliminary inquiry towards the mental status of accused---Trial Court had directed to obtain opinion of psychiatrists, for which MRI and EEG of brain of accused were carried on---When every thing was found to be healthy, Trial Court, while dismissing the application of accused, deemed it proper to proceed further, and held the accused to be fit to face the trial---Report of Pakistan Institute of Medical Science, available on record indicated that the result of MRI of accused was normal---Accused had not urged that at the time of commission of alleged occurrence, he was suffering from any mental disease, entitling him for any special concession---Trial Court had discussed in the impugned order, each and every aspect of the case, and when accused was found to be fit to face the trial, his application was dismissed---Revision against dismissal of application being devoid of any force, was dismissed, in circumstances.

Atta Muhammad v. The State PLD 1960 (W.P.) Lahore 111 and Jalal Din v. The State 1968 PCr.LJ 187 ref.

Imran Haider for Petitioner.

Qaisar Mushtaq, A.D.P.P. for the State.

Fauzia Nazir for Respondent No.3.

Date of hearing: 13th May, 2014.

2014 P Cr. L J 1373

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13679-B of 2013, decided on 13th November, 2013.

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

----Ss. 497 & 498---Pre-arrest and post-arrest bail, grant of---Difference in criteria---Criteria for grant of post-arrest bail was totally different than the criteria for considering a petition for pre-arrest bail---For cases falling under S. 498, Cr.P.C., the main factor, which was to be considered by the court was malice of the police or the complainant for falsely implicating a person in the case, whereas in an application filed under S. 497, Cr.P.C. it was to be seen whether any question or point involved in the case needed further probe or inquiry, and in case there was such need, then bail was usually granted under S. 497(2), Cr.P.C.

Karim Bakhsh v. The State 2000 SCMR 1405 rel.

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

----Ss. 497 & 498---Pre-arrest and post-arrest bail application---Grounds--- Points raised (by accused) in his pre-arrest bail application could be agitated by him in his post-arrest bail application.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Failure of accused to comply with directions of court regarding depositing of disputed amount---Effect---Pending civil proceedings---Complainant gave Rs. 70 lac to the accused for purchase of land---Accused failed to perform terms of the agreement and allegedly offered Rs. 23 lac more for repudiating the agreement of sale and in such respect allegedly issued a cheque of Rs. 93 lac in favour of the complainant---Said cheque was dishonoured on presentation before the bank---Plea of complainant that accused was not entitled for post-arrest bail since he had given an undertaking before the Supreme Court to deposit the disputed amount for getting the relief of pre-arrest bail, and since such undertaking was not honoured by accused, he was arrested---Validity---Although accused gave an undertaking before the Supreme Court to deposit the disputed amount but because of his failure to do the same, relief of pre-arrest bail was not granted to him and the matter stood closed with withdrawal of the bail application---Such undertaking given by accused could not always stand in his way for seeking relief of bail, rather post-arrest bail application was to be considered on its own merits keeping in view the law governing it, without being influenced by the undertaking given by the accused---Complainant was allegedly offered Rs. 23 lac more by the accused for failing to perform the agreement, and such fact required probe to determine whether in fact disputed cheque of Rs. 93 lac was issued to repay consideration paid by complainant or it was issued to secure the future interest of the complainant---Challan against accused had already been submitted in court, therefore he was no more required for further investigation---Civil suit filed by complainant for specific performance of agreement to sell was pending in the civil court, wherein complainant was required to establish alleged repudiation of agreement by the accused and offer of returning Rs. 93 lac---Jurisdiction of civil court could not be pre-empted at bail stage by accepting story narrated in the F.I.R.---Sentence of offence alleged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was granted bail in circumstances.

Syed Ihtisham Qadir Shah for Petitioner.

Muhammad Ishaque, D.P.-G. with Muhammad Saleem, A.S.-I. for the State.

Khurram Liaquat Sheikh for the Complainant.

2014 P Cr. L J 1387

[Lahore]

Before Zafar Ullah Khan Khakwani, J

AZHAR IQBAL---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous No.3656-M of 2013, heard on 10th April, 2014.

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

----Ss. 561-A & 382-B---Pakistan Army Act (XXXIX of 1952), Ss.2, 59 & 135---Official Secrets Act (XIX of 1923), S.3---Passports Act (XX of 1974), S.4---Committing civil offence, spying, departure from Pakistan without passport---Claim of benefit of S. 382-B, Cr.P.C.---Accused who was convicted under Pakistan Army Act, 1952 claimed benefit as provided under S.382-B, Cr.P.C.---Validity---Accused was subject to Pakistan Army Act, 1952, which was a Special Law, and he was tried by Field General Court Martial for offence under S.59 of said Act, whereas S. 382-B, Criminal Procedure Code was a general law---Section 135 of Pakistan Army Act, 1952, which had declared that sentence awarded to a person under said Act, would commence on the date on which the original proceedings were signed by the President, or in the case of Summary Court Martial by the court, had eliminated any misconception regarding applicability of benefit of S.382-B, Cr.P.C.---Trials under the Pakistan Army Act, 1952 and punishment of crimes and sentence thereunder was not for ordinary offences, but were restricted only to the offences relating to or under said Act, which had its own policy and scheme of punishment---Accused being involved in anti-State/espionage activities, he could not claim any right under the inherent jurisdiction of High Court, and non-granting him the benefit of S.382-B, Cr.P.C., was justified---Provisions of S.382-B, Cr.P.C. being not applicable to accused, his petition was dismissed, in circumstances.

Syed Hashim Ali Shah v. President Summary Military Court Karachi and others 1984 PCr.LJ 1379; Shah Hussain v. The State PLD 2009 SC 460 and Nabi Dad v. Registrar Court of Appeals, Judge Advocate General's Department, G.H.Q. Rawalpindi and 3 others PLD 2009 Quetta 27 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Inherent jurisdiction of High Court under S.561-A, Cr.P.C. would be exercised only where such orders were necessary to give effect to any order under Criminal Procedure Code, or to prevent abuse of the process of any court, or otherwise to secure the ends of justice.

Syed Karamat Ali Naqvi for Petitioner.

Shan Gull, Additional Advocate-General with Shahzad Jajja, Assistant Superintendent Jail for the State.

Date of hearing: 10th April, 2014.

2014 P Cr. L J 1395

[Lahore]

Before Ali Baqar Najafi, J

BASHIRAN BIBI---Petitioner

Versus

CITY POLICE OFFICER, FAISALABAD and 5 others---Respondents

Writ Petition No.1249 of 2013, decided on 5th December, 2013.

(a) Police Order (22 of 2002)---

----Art. 134---Constitution of Pakistan, Art. 199---Constitutional petition---Power of police to make inventory of unclaimed property, etc.---Scope---Police took away cattle from petitioner's house claiming that same belonged to two accused persons of an F.I.R. who had absconded---Petitioner was the only claimant of the cattle---Nothing on record suggested that cattle belonged to the two proclaimed offenders except statement of police officials, who themselves failed to arrest the absconders---Petitioner had been moving from pillar to post for the cattle---No inquiry was conducted by concerned City Police Officer (CPO) to ascertain ownership of cattle---Constitutional petition was disposed of with the direction to CPO to call the concerned Station House Officer (SHO), take the cattle back from him and hand them over to the petitioner on her personal bond and also decide about the compensation, if any, to the petitioner---High Court further directed that an inquiry should be conducted against culprit/police officials who illegally detained the cattle without following the procedure prescribed under law.

Roshan Ali v. S.H.O. 2011 YLR 1609 ref.

(b) Police Order (22 of 2002)---

--- Art. 134---Power of police to make inventory of unclaimed property, etc.--- Scope---Under Art. 134 of the Police Order, 2002, police was empowered to make inventory of unclaimed property, which shall be sent to the City Police Officer (CPO), who will issue proclamation within a fortnight requiring the claimant to establish his claim within three months---Such property on satisfaction of its title, shall be given to such a claimant.

Rai Salah ud Din Kharal for Petitioner.

Sittar Sahil, A.A.-G. along with Aslam, S.-I. with record.

2014 P Cr. L J 1423

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ali Baqar Najafi, JJ

FAYYAZ AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.340-J of 2009, heard on 25th June, 2013.

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

----Ss. 6 & 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Both complainant/Investigating Officer and other prosecution witness, had admitted that accused was just a carrier of donkey cart---Star witness of the prosecution, lent support to the defence version that accused was not having any knowledge, whether the luggage being carried by him in lieu of wages of Rs.300 was narcotics substance or something else---Trial Court despite holding that accused seemed to be a poor man and a cart driver, convicted and sentenced him---Case of accused was clearly that of acquittal, Trial Court ought not to have recorded conviction against him---Facts of the present case did not satisfy the provisions of S.6 of the Control of Narcotic Substances Act, 1997---Trial Court, in circumstances, was not justified while recording conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997---Judgment of the Trial Court was set aside, accused was acquitted of the charge and was ordered to be released, in circumstances.

Nazar Hussain and another v. The State 2007 YLR 1601 and Warner and Metropolitan Police Commissioner (1969) 2 A.C. 256 (H.L.) rel.

Muhammad Tahir Butt for Appellant.

Amjad Rafique, Deputy Prosecutor-General for the State.

Date of hearing: 25th June, 2013.

2014 P Cr. L J 1441

[Lahore]

Before Mazhar Iqbal Sidhu and Arshad Mahmood Tabassum, JJ

MUHAMMAD AKMAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.99 and Murder Reference No.65 of 2009, heard on 7th April, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Matter having been reported promptly, there was no possibility of deliberations or consultations---No previous enmity had been found between the parties---No direct evidence of the motive existed, but on that score alone, the whole case could not be thrown away---Non-proof of the motive or disproof of it would not mean that the whole incident was doubtful---Presence of eye-witnesses, was not unusual at the place of occurrence because the deceased was an employee of the owner of the place where incident took place---No significant inconsistency had been noticed in medical evidence vis-a-vis its corroboration to ocular account---Recovery of the 'Toki' further corroborated the prosecution case being sharp edged weapon and the injuries were caused with the same kind of weapon---Report of the Chemical Examiner as to its blood-imbrued was in the affirmative---Prosecution had ably proved its case against accused beyond shadow of reasonable doubt---Circumstances existed to favour accused so as to extenuate the quantum of sentence from death to life imprisonment---While maintaining the conviction, death sentence was commuted to imprisonment for life with benefit of S.382-B, Cr.P.C.

Muhammad Javed and another v. The State and others 2011 SCMR 1662 ref.

Mian Qamar-ud-Din Safeer and Rana Muhammad Asif Saeed for Appellant.

Malik Saeed Ahmad Gumb for the Complainant.

Hassan Mehmood Khan Tareen, Deputy Prosecutor-General for the State.

Date of hearing: 7th April, 2014.

2014 P Cr. L J 1468

[Lahore]

Before Shahid Hameed Dar, J

RASHID MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.7963-B of 2013, decided on 11th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 462-B---Theft of oil from a petroleum pipeline--- Bail, grant of---Incompetent investigation of case---Effect---Accused along with his-co-accused was alleged to have pilfered a sizeable quantity of oil by tampering a main underground petroleum pipeline---Main oil pipeline connecting the country had been tampered with for pilfering oil without conceiving its hazardous fall-out, as breach in the main pipeline could have flooded and set-ablaze the entire area causing massive loss of property and human lives---However, investigation of the case was so shallow that alleged offence was not backed by any incriminating evidence except for alleged recovery of twenty liters of petrol from the accused, which carried little weight as it was not compared with the oil flowing in the pipeline---Statement of complainant/employee at oil refinery required collection of circumstantial evidence, but same was not done during investigation---For investigation of a high profile case such as the present one, dexterity, craftsmanship and legal acumen were prerequisites, however investigation of the present case appeared to be of the poorest quality, brainlessly carved out and hopelessly dealt with---Due to said fallacies in the prosecution's case, accused had made out a case for bail in his favour under S. 497(2), Cr.P.C.---Accused was no more required for any recovery---Accused was released on bail accordingly with the direction that Provincial Inspector General of Police and Additional Inspector General (Investigation) should look into the efficiency, conduct and potential of the investigating officer of the present case and other officials supervising him, and formulate an opinion if the fallacies in the investigation of the present case were to be taken pride of or they asked for bemoaning and bowing the heads in acknowledgement of failure.

Fahad Ahmad Siddiqui for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab along with Hanif, S.-I. for the State.

Muhammad Hanif Khan for the Complainant.

2014 P Cr. L J 1490

[Lahore]

Before Syed Iftikhar Hussain Shah and Miss Aalia Neelum, JJ

SAJJAD AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.215-J of 2011, heard on 10th March, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Complainant and prosecution witness had fully supported the prosecution version, on account of recovery; they were subjected to lengthy cross-examination, but the defence had failed to bring on record any evidence favouring the defence version---Other prosecution witness also reiterated the facts as given in the F.I.R., as well as uttered by the complainant; he was also subjected to lengthy searching cross-examination, but with no fruitful result---No objection had been raised to the effect that the contraband was unsealed or tampered with, therefore, delay in sending the sample for examiner would not affect result of Chemical Examiner---Report of Chemical Examiner was positive, and the defence had not disputed the nature of contraband---Contention that no private person having been associated to witness the recovery, recovery was false, was devoid of force as by virtue of S.25 of the Control of Narcotic Substances Act, 1997, provision of S.103, Cr.P.C. was excluded---Trial Court while taking note of fact that accused was first offender, had already inflicted alternative sentence of imprisonment for life---Prosecution had fully established its case against accused through leading tangible and confidence-inspiring evidence---Trial Court while appreciating the evidence available on the record in its true perspective, had rightly recorded the conviction and sentence against accused.

Ameer Zeb v. The State PLD 2012 SC 380; Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 and Fida Jan v. The State 2001 SCMR 36 ref.

Tanveer Hussain Hanjra for Appellant.

Muhammad Amjad Rafique, Deputy Prosecutor-General along with Muhammad Khan, S.-I. for the State.

Date of hearing: 10th March, 2014.

2014 P Cr. L J 1517

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD YOUSAF---Appellant

Versus

MUHAMMAD YOUSAF and another---Respondents

Criminal Appeal No.1449 of 2011, decided on 19th June, 2013.

Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing cheques---Appreciation of evidence---Retrospective effect of S.489-F, P.P.C.---Scope---Trial Court acquitted accused on the ground that provision of S.489-F, P.P.C. was not promulgated at the time of commission of offence---Validity---At the time of issuance of disputed cheques, law did not exist for taking cognizance in respect of issuance of negotiable instrument drawn dishonestly and to avoid liability but it existed at the time of availing remedy before the Court, that was why F.I.R. was registered under S.489-F, P.P.C., much after promulgation of law---Lis should be dealt with in accordance with law available at the time of accrual of right to sue in favour of a person---Although right to sue in favour of complainant existed on the date of issuance of cheques yet he did not set into motion the criminal machinery at that time, thus valuable right had accrued in favour of accused, of which he could not be deprived due to indolence of complainant---Trial Court keeping in view the fact that S.489-F, P.P.C. had no retrospective effect and was prospective in nature, did not commit any illegality nor order of acquittal was perverse or against canons of law, therefore, the same was maintained---Appeal was dismissed in circumstances.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

Colonial Sugar Mills 1905 Appeal Cases 369 rel.

Ch. Azeem Sarwar for Appellant.

2014 P Cr. L J 1531

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

MUHAMMAD ASHFAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.387 and Murder Reference No.48 of 2010, heard on 15th April, 2014.

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

----Ss. 302, 365-B, 376 & 201---Qatl-e-amd, kidnapping, abducting or inducing woman to compel for marriage etc.---Appreciation of evidence---Benefit of doubt---Last seen evidence had not been put to accused in his statement recorded under S.342, Cr.P.C. for his explanation---Such evidence could not be used against accused for his conviction, but the Trial Court illegally, without realizing the legal position, not only used said last seen evidence against accused, but also convicted accused on said piece of evidence, which could not be sustained---Husband of the deceased had been given up by prosecution during trial and was not produced as a witness; his non-production as a witness, in the trial, itself created doubt in the story of motive---Prosecution had failed to prove the motive---Chemical Examiner's report, according to which the swabs were stained with semen, was not helpful to the prosecution, because the deceased was residing with her husband happily and DNA or group semen test in the case was of immense importance, which could have sufficiently be determined as to whether the intercourse with deceased was committed only by the accused---Benefit of said omission should go to accused---Alleged recovery of "Chadar" was not helpful to the prosecution because same was not blood-stained, and was not sent to Chemical Examiner---Said chaddar was not an incriminating article and did not belong to deceased---Prosecution having failed to bring home guilt of accused to the hilt, Trial Court was not justified in convicting accused, while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses, which even otherwise was full of material contradiction---Accused was acquitted of the charges extending him benefit of doubt; his conviction and sentence by the Trial Court, were set aside and he was released, in circumstances.

Altaf Hussain and others v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----S. 342---Failure to put to accused any incriminating piece of evidence in his statement under S.342, Cr.P.C.---Effect---If any incriminating piece of evidence, was not put to accused in his statement under S.342, Cr.P.C. for his explanation, then same could not be used against him for his conviction.

Muhammad Shah v. The State 2010 SCMR 1009 and Muhammad Fayyaz v. The State 2012 SCMR 522 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence, could confirm ocular evidence with regard to the seat of the injuries, nature of the injuries and kind of weapon used in the occurrence, but it would not connect accused with the commission of crime.

Zafar Iqbal Awan, Ghazanfar Ali Khan and Tariq Mehmood for Appellant.

Nemo despite service for the Complainant.

Asghar Ali Gill, D.P.-G. for the State.

Date of hearing: 15th April, 2014.

2014 P Cr. L J 1556

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Miss Aalia Neelum, JJ

MUHAMMAD ARIF---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.22560 of 2013 in Criminal Appeal No.973 of 2013, decided on 4th December, 2013.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Qanun-e-Shahadat (10 of 1984), Arts. 61 & 84---Constitution of Pakistan, Art.199---Constitutional petition---Misuse of authority---Suspension of sentence---Forgery---Proof---Handwriting expert's report, absence of---Comparison by Court---Allegation against accused was that he prepared forged documents including agriculture pass book and average sale certificate and recommended for loan---Trial Court convicted the accused and sentenced him to five years imprisonment---Validity---Specific allegation existed against accused but prosecution failed to procure report of handwriting expert to establish forgery on the part of accused---Comparison/observation of Trial Court could not be made basis for passing conviction against a person, which even otherwise was dangerous without aid of expert---Conviction based on such comparison was unjustified---High Court suspended sentence awarded to accused and admitted him to bail---Petition was allowed in circumstances.

Khan Muhammad v. The State 1974 PCr.LJ 15; Tanveer Jamshed and another v. Raja Ghulam Haider 1986 CLC 456 and Dr. Major Abdul Ahad Khan through his Legal Representatives v. Muhammad Iqbal PLD 1989 Kar. 102 ref.

Muhammad Anwar v. The State 1984 PCr.LJ 1320 rel.

Malik Mushtaq Ahmad Nonari for Petitioner.

Haroon ur Rasheed Cheema, Additional Deputy Prosecutor-General, NAB for the State.

2014 P Cr. L J 1578

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

MUHAMMAD RAFIQ and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.264 and Writ Petition No.2914 of 2007, heard on 19th June, 2013.

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

----Ss. 334 & 34---Causing Itlaf-i-Udw, common intention---Appreciation of evidence---Details of incident, such as names of accused persons, their roles, were fully mentioned in the F.I.R.---Injuries attributed to accused persons, were fully supported by the medical evidence---Both parties were residents of the same village and known to each other, and the relations between the parties were strained---Incident was a day time occurrence, no chance of mistaken identity existed---Accused persons had taken a specific plea in their statement recorded under S. 342, Cr.P.C. that they were sleeping under the trees and some unknown assailants had chopped off nose and lips of the victim---Nothing was on record to substantiate said plea of accused persons; it was not believable that some one cut nose and lips of a person, and he remained unaware about the identity of assailants---Accused persons had failed to substantiate the plea taken by them---Recovery of weapon of offence, knife, had been effected from accused---Even otherwise, the recovery was always considered to be corroborative piece of evidence---Accused person, who in furtherance of their common object, while acting in desperate and gruesome manner, having chopped of the nose and lips of the victim, deserved no leniency---Prosecution had proved its case against accused persons beyond any shadow of doubt---No exception could be taken to the conviction of accused under S.334/34, P.P.C. as judged by the Trial Court---Conviction and sentence of accused persons under S.334/34, P.P.C., were maintained, in circumstances.

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

----Ss. 324 & 34---Attempt to commit qatl-e-amd, common intention---Appreciation of evidence---No allegation was levelled against accused persons that they had inflicted injuries to the injured prosecution witnesses---Prosecution had failed to prove the factum of firing at the place of occurrence, as no empty was recovered from the place of occurrence by the Investigating Officer---Tractor behind which the complainant had taken shelter, was neither hit by any bullet, nor same was taken into possession by Investigating Officer during investigation---Intention of accused persons was not to kill the deceased, but their intention was to make the victim, a symbol of didacticism in the society due to having illicit relations with the daughter of accused---Provisions of S.324/34, P.P.C. were not attracted in the case---Conviction recorded against accused persons under Ss.324/34, P.P.C., was not legal and being based on non-appreciation of evidence, conviction and sentence recorded against accused persons by the Trial Court, were set aside, in circumstances.

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

----S. 7(c)---Act of terrorism---Appreciation of evidence---Occurrence, in the present case was outcome of a personal vendetta i.e. illicit relations of injured prosecution witness with the daughter of accused---Prosecution witnesses had not uttered, even single word in their examination-in-chief with regard to striking of any panic, terror, fear or insecurity in the public or locality due to the alleged occurrence---No doubt act of accused persons, was desperate and brutal, but mere brutal act would not constitute an offence under S.7 of Anti-Terrorism Act, 1997---Provisions of S.6 of Anti-Terrorism Act, 1997, punishable under S.7 of the Anti-Terrorism Act, 1997, were not attracted in the peculiar circumstance of the case---Charge under S.7(c) of Anti-Terrorism Act, 1997, having not been proved against accused persons, to that extent, the judgment of the Trial Court, was set aside---Appeal was partially allowed (to the extent of conviction and sentence under Ss.324/34. P.P.C. and S.7(c) of Anti-Terrorism Act, 1997), which were set aside, while maintaining the conviction and sentence under Ss.334/34, P.P.C., which would run concurrently with benefit of S.382-B, Cr.P.C.

(d) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.334 & 34---Causing Itlaf-i-Udw, common intention---Constitutional petition seeking award of maximum amount of compensation for the victim---Maintainability---Trial Court was the proper forum to decide the quantum of compensation to be awarded to the victim---Trial Court had given sufficient reason in the impugned judgment for awarding compensation to the injured prosecution witnesses---Constitutional petition having no force, was dismissed.

Sardar Khurram Latif Khan Khosa for Appellants.

Syed Zahid Hussain Bokhar and Ms. Khalida Parveen for the Complainant.

Tariq Javed, D.D.P.P. for the State.

Date of hearing: 19th June, 2013.

2014 P Cr. L J 1591

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

TASAWAR HAYAT and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.423-J, Criminal Revision No.1307 and Murder Reference No.605 of 2010, heard on 26th May, 2014.

(a) Maxim---

----Falsus in uno falsus in omni (omnibus), principle of---Applicability---Principle of falsus in uno falsus in omni (omnibus) does not apply to criminal trials---Court was to disengage truth from falsehood, to sift grain from chaff instead of taking easy course of rejecting or accepting evidence in its entirety.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive not proved---Non-repeating of fire---Mitigating circumstances---Sentence, reduction in---Accused was convicted under S.302(b), P.P.C. by Trial Court and was sentenced to death---Validity---Ocular account was confidence inspiring having no iota of doubt and the same could be relied upon---Motive part of occurrence was not proved beyond reasonable doubt---Once prosecution alleged a motive, then it was its duty to prove the same and when prosecution failed to prove the same, it could be considered a mitigating circumstance in favour of accused---Although, in the present case, prosecution set up a specific motive but the same could not be proved and accused did not repeat fire upon deceased despite having the opportunity---High Court maintained the conviction but converted death sentence into imprisonment for life---Appeal was dismissed accordingly.

Hasil Khan v. The State 2012 SCMR 1936; Qurban Ali v. Sheroo Machi and another 1991 SCMR 2339; Muhammad Arshad and 2 others v. State PLD 1996 SC 122; Akbar Ali and others v. The State and another PLJ 2014 Criminal Cases (Lahore) 13; Usman alias Kalu and another v. The State and another 2011 PCr.LJ 815; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Iftikhar Ahmad Khan v. Asghar Khan and another 2009 SCMR 502 rel.

Mrs. Nighat Saeed Mughal for Appellants.

Kashif Ali Chaudhry for the Complainant.

Aqil ur Rehman, D.D.P.P. for the State.

Date of hearing: 26th May, 2014.

2014 P Cr. L J 1602

[Lahore]

Before Shah Khawar, J

Mst. NASEEM KAUSAR---Petitioner

Versus

AKASH alias AFTAB and 4 others---Respondents

Criminal Petition of Special Leave to Appeal No.229 of 2012, decided on 3rd April, 2014.

Penal Code (XLV of 1860)---

----Ss. 380 & 457---Criminal Procedure Code (V of 1898), S. 417(2)---Theft in dwelling house, lurking house-trespass or house-breaking by night---Special leave to appeal against acquittal order, petition for---Judicial Magistrate having acquitted accused after fully discussing the evidence led by the complainant and all relevant facts, the complainant had filed petition for special leave to appeal against judgment of Judicial Magistrate--- Validity--- Scope of S.417(2), Cr.P.C., whereunder petition was filed, was very limited and High Court could exercise powers thereunder in the case when findings of courts below were perverse, arbitrary, foolish, artificial, speculative and ridiculous---High Court would not interfere simply for the reason that on the reappraisal of evidence, a different conclusion could possibly be arrived at---Different conclusion should not be upset, except when the order suffered from serious material infirmities---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 to accused was attached to the order of acquittal---It was bounden duty of the prosecution to prove its case beyond any shadow of doubt---Accused were considered innocent, unless proved otherwise by the prosecution, supported by solid and confidence inspiring evidence, which lacked in the present case---Impugned judgment had been passed with due evaluation and appraisal of evidence and other circumstances attached thereto---Previous rivalry and matrimonial dispute inter se the complainant and accused, could not be ignored---Case was full of contradictions, and element of afterthought, could not be ruled out---Magistrate, met all four corners for arriving at a just conclusion of the matter---Impugned judgment passed by Magistrate could not be interfered with.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Din Muhammad v. Crown 1969 SCMR 777 rel.

Ijaz Ahmad Janjua for Petitioner.

2014 P Cr. L J 1613

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SAFDAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.253 of 2013, heard on 15th April, 2014.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5---Criminal breach of trust by public servant, corruption---Appreciation of evidence---Benefit of doubt---Allegation of misappropriation of amount was alleged against accused, but the parcel containing the total amount as alleged, when opened, was in a sealed condition---As to how it could be inferred that amount in question was misappropriated by accused, especially when the prosecution had not produced any evidence regarding the tampering of the seal on the parcel in question---Prosecution was not consistent regarding the date of deposit of the parcel---Prosecution witnesses, in whose presence the parcel was opened, had not uttered a single word that when the parcel was received by the Treasury, or when it was received by the complainant; or when it was opened in presence of prosecution witness, and the complainant himself, same was already desealed or having a tampered seal on the same---Prosecution was to stand on its own legs to prove the charge against accused, but in the present case no evidence had been produced by the prosecution to prove that the entrustment was of a parcel containing the amount in question---Misappropriation of amount by accused, had not been proved by the prosecution beyond a reasonable doubt---Even a single reasonable doubt creating suspicion about the culpability of accused, was sufficient to extend benefit of the same to accused---Conviction could not be based on surmises and conjectures---Prosecution was duty bound to establish its case against accused by leading cogent, convincing and plausible evidence, free from all hypothesis, which was lacking in the case---Accused was entitled to the benefit of doubt, as a matter of right and not of grace---Conviction and sentence awarded to accused by the Trial Court, were set aside, accused was acquitted of the charge, and was released, in circumstances.

Syed Ali Shah Bukhari for Appellant.

Ch. Qaiser Mushtaq, A.D.P.P. for the State.

Date of hearing: 15th April, 2014.

2014 P Cr. L J 1620

[Lahore]

Before Kh. Imtiaz Ahmad and Mrs. Aalia Neelum, JJ

SIKANDAR HAYAT MAKEN---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.1165 of 2013, decided on 24th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9(a)(vi) & (b)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, refusal of---Misuse of authority---Illegal appointment---Accused was arrested by NAB on the allegation of recommending name of principal accused for appointment as Chairman OGRA, which appointment was illegal and the Chairman caused billions of rupees loss to national exchequer---Validity---Accused along with other members of committee gave justification of recommendations in respect of principal accused as, "20 years' experience in the field of law, sufficient experience in handling cases of Corporate law in private as well as public sectors, served as Registrar in OGRA from 2002 to 2006, presently working with noble group of companies"---Accused did not object on illegality committed by Selection Committee and such act of accused fell under S.9(a)(vi) of National Accountability Ordinance, 1999---During the period principal accused remained as Chairman, he caused a loss in excess of Rs.82 billion to OGRA and national exchequer directly---Prima facie, accused had played a significant role in the process of selection of principal accused as Chairman OGRA and his culpability for malfeasance, non-feasance would be proved during investigation by investigating officer---Petition was dismissed in circumstances.

Muzammil Niazi v. The State PLD 2003 Kar. 526 and The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 distinguished.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

Azid Nafees, Aftab Ahmad Butt and Muhammad Aslam Khan for Petitioner.

Barrister Saeed ud Rehman Khan, ADPG for NAB along with Zahid Hussain Sheikh, DD/I.O. NAB, Rawalpindi for the State.

2014 P Cr. L J 1635

[Lahore]

Before Mazhar Iqbal Sidhu and Shezada Mazhar, JJ

AZHAR MEHMOOD alias MOODI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.8085-B of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-B, 376, 337-J, 342, 292, 506 & 509---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, causing hurt by means of poison, wrongful confinement, sale of obscene books etc., criminal intimidation, word, gesture or act intending to insult the modesty of a woman, acts of terrorism---Bail, refusal of---Accused was alleged to have administered an intoxicant to the victim, where after he raped her and made a video film of the crime---Accused also allegedly blackmailed the victim due to the video film---Accused was categorically named in the F.I.R. with a specific role---Victim recorded her statements under Ss. 161 & 164, Cr.P.C. and specifically attributed to the accused charges of her abduction, rape, wrongful confinement and making of video film---No malice, ill-will, animosity or motive was shown on part of the complainant to falsely implicate the accused---Joint Investigation Team conducted extensive investigation and found the accused to be involved in the commission of the offence---Expert report on the video of the occurrence stated that no tampering or editing was made with the video---Two witnesses of the locality corroborated the factum of playing of video film to them---Playing of video film of the victim by the accused was continuation of the offence---Prima facie, evidence collected incriminated the accused to establish his physical presence, connectivity and participation in the crime---Offence allegedly committed by accused was a sensational, brutal and heinous crime, which had to be deprecated and dealt with iron hands---Such offences were not only committed against the individual, rather were also considered offences against the society and the State---Offences alleged against accused fell within the prohibitory clause of S. 497, Cr.P.C.---Accused was refused bail in circumstances.

Danyal Ijaz Ahmad Chadhar for Petitioner.

Tariq Javaid, DPP with Sadiq S.-I. for the State.

Ch. Ejaz Ahmad for the Complainant.

2014 P Cr. L J 1640

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUZAMMAL HUSSAIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.541, 436, 621 and 622 of 2012, heard on 21st June, 2013.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5--- Criminal Procedure Code (V of 1898), Ss. 221, 342, 364 & 537---Criminal breach of trust, cheating, forgery and illegal gratification---Appreciation of evidence---Plea raised by accused was that neither charge was properly framed, nor incriminating evidence was put to them properly in statement under S.342, Cr.P.C. and evidence was also not recorded in accordance with law---Validity---By non-framing of charge, no prejudice was caused to accused but simultaneously it was requirement of law that each and every fact leading to criminal action taken by a person was to be alleged against him with reference to the sections under which that act had become punishable---By not charging accused according to the acts performed by them and covered by penal provisions, grave injustice had been done to accused---Certificate of its inability was mandatory requirement of law, when Trial Court had not recorded evidence itself---Accused were confronted with documentary evidence jointly, which confrontation showed that all documentary evidence available on record was confronted to each of the accused irrespective of the fact whether that document was related to that accused or not---Defects pointed out by accused were in fact procedural irregularities committed by Trial Court in conducting trial which were curable and could be cured---When such conclusion was drawn that the defects were curable irregularities and not illegalities vitiating proceedings, then there was no other option except to remit the case to Trial Court for conducting de novo trial---High Court set aside convictions and sentences awarded to accused persons and case was remanded to Trial Court for trial afresh in accordance with law---Appeal was allowed in circumstances.

Mst. Kausar Bibi v. The State 2011 PCr.LJ 1495 distinguished.

Shehram Sarwar Ch. for Appellants.

Sher Afgan Asadi for Appellants (in Criminal Appeal No.436 of 2012).

Waqar Hassan Mir for Appellants (in Criminal Appeal No.621 of 2012).

Ijaz Feroze for Appellants (in Criminal Appeal No.622 of 2012).

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Date of hearing: 21st June, 2013.

2014 P Cr. L J 1649

[Lahore]

Before Zafarullah Khan Khakwani and Syed Iftikhar Hussain Shah, JJ

GHULAB ALI alias GHULABO and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.494 and 55 of 2013, heard on 9th April, 2014.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possessing and trafficking of narcotics---Appreciation of evidence---Police Inspector who appeared as witness, almost had reiterated the story narrated by him in the complaint---Said witness gave minute details of the narcotics which were recovered from possession of accused---Witness was fully corroborated by other Police Official who was also a member of raiding party---Contention of counsel for accused persons regarding violation of S.103, Cr.P.C., had no force, because S.25 of the Control of Narcotic Substances Act, 1997 had excluded the application of the said provision of Cr.P.C., from the cases of narcotics---Place of recovery was not a public place, but was a house; there was no possibility of any private person to witness the proceedings specially during the night when occurrence took place---Directions given in Rr.4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory in nature and not mandatory at all, coupled with the fact that the same did not override the main statute---Seventy-seven kilograms charas and 13-1/2 kilograms opium were recovered from possession/at the behest of accused persons; and accused persons never contended that such a huge quantity of narcotics was not recovered from them---Samples, though were sent to the laboratory after 15 days of recovery of narcotics, but the defence could not prove that the samples were tampered with during that period---Delay in submission of samples to the laboratory, was not fatal to the prosecution case to initiate the conviction---Positive reports of the laboratory supported the prosecution case---Accused who was apprehended at the spot, disclosed that his brother/co-accused was also involved---Said co-accused was specifically nominated in the F.I.R.---Witnesses remained consistent with regard to place of recovery, recovery of narcotics and even the names of accused persons---Accused were notorious drug dealers having previous record---All said circumstances, fully involved accused persons with the commission of crime---No enmity, had been alleged against prosecution witnesses---No ground for false implication was alleged---Prosecution having successfully proved its case, and accused having rightly been convicted and sentenced, their appeal was dismissed, in circumstances.

Salah ud Din v. The State 2010 SCMR 1962 ref.

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

----Preamble & S. 9---Intent and object of promulgation of Control of Narcotic Substances Act, 1997 was to control the production, processing and trafficking of narcotics etc., and having been promulgated for that special purpose, its operative provisions should not be crushed on mere technicalities---In achieving the object of that Act, court should be vibrant and minor irregularities or discrepancies, must be overlooked.

Ismaeel v. The State 2010 SCMR 27 ref.

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

----Arts. 132 & 133---Cross-examination---Failure to cross-examine---Effect---When a witness entered in the court for examination, but was not cross-examined, despite opportunity was being given, the statement of said witness, should be considered as admitted.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

Muhammad Masood Chishti for Appellants.

Iftikhar ul Haq Chaudhry, Additional Prosecutor-General with Aftab Inspector for the State.

Date of hearing: 9th April, 2014.

2014 P Cr. L J 1663

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

RAZIA SULTANA---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.1825 of 2010, heard on 1st April, 2014.

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

----Ss. 9(c) & 15---Possessing and trafficking narcotics and aiding, abetment or association in narcotic offences---Appreciation of evidence---Police constable and S.H.O., who were produced to prove the factum of recovery of huge quantity of narcotics, firmly supported the prosecution story, and they remained unshattered during cross-examination---Defence failed to create any doubt, beneficial to it in any manner---Assistant Sub-Inspector, also strengthened the prosecution case by supporting the fact of safe custody of sample parcels in the Malkhana, as well as safe transaction of the same to the office of Chemical Examiner in an intact condition; which stood further corroborated by the contents of report of Chemical Examiner---Defence could not get any benefit, because prosecution witnesses corroborated each other on every material point connecting accused with the commission of offence, without any doubt---Recovery from the house of accused was effected, on her own pointation, who herself led the raiding party there---No plausible reason for planting such a huge quantity of narcotics against accused by the complainant had been given by the defence---Impugned judgment passed by the Trial Court, was upheld, in circumstances.

Syed Faizan Rasool for Appellant.

Tariq Saleem Sheikh, Special Prosecutor, A.N.F. for the State.

Date of hearing: 1st April, 2014.

2014 P Cr. L J 1680

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD ZUBAIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.204 of 2013, decided on 21st June, 2013.

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

----S. 7--- Juvenile accused--- Determination---Birth certificate and medical evidence---Scope---Accused, relying upon medical report, claimed to be juvenile offender but complainant produced birth certificate of accused---Trial Court relying upon the birth certificate did not declare the accused as child---Validity---Medical report was not the sole criterion for determination of age of accused, it was one of the pieces of evidence to be considered for such purpose---Medical report could be relied upon, if there was no other cogent evidence on record regarding age of accused---Complainant succeeded in getting certified copy of birth certificate of accused according to which he was born on 28-6-1993 and his birth was reported on next day i.e. 29-6-1993, by Chowkidar---Birth certificate in which name of accused was mentioned stood un-rebutted---Trial Court, from such evidence was in a position to ascertain exact date of birth of accused so it was rightly relied upon to determine the age of accused and according to birth certificate, accused was 18 years, 2 months and 26 days old at the time of occurrence, so he did not fall within the definition of "child" and could not claim separate trial to be conducted under Juvenile Justice System Ordinance, 2000---When there was nothing on record to rebut birth certificate there was no reason for Trial Court to discard such authentic piece of evidence---Exact age of any person could not be ascertained and determined by medical report---Difference existed between report of dental surgeon and ossification test---When exact date of birth was proved on record through birth certificate, the medical report could not be given preference over birth certificate---Trial Court rightly preferred birth certificate over medical report---Order passed by Trial Court suffered from no infirmity and warranted no interference by High Court in exercise of revisional jurisdiction, as Lower Appellate Court exercised jurisdiction vested in him---Revision was dismissed in circumstances.

Malik Sajjad Ahmad v. The State and another 2006 PCr.LJ 211; Adeel Hassan v. The State and another 2008 PCr.LJ 710; Tauseef alias Captain v. The State and another PLD 2008 Lah. 220 and Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218 distinguished.

Muhammad Anwar v. Muhammad Suffiyan and another 2009 SCMR 1073; Muhammad Malik Afzal and others v. Muhammad Noor through L.Rs 2012 YLR 161 and Mehboob Ahmad v. The State and 2 others 2002 PCr.LJ 2034 ref.

Ijaz Ahmed Gurmani for Petitioner.

2014 P Cr. L J 1695

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD RAFIQUE---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 1 in Criminal Appeal No.10-J of 2013, decided on 10th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 320, 279 & 427---Qatl-e-Khata, rash driving on public way and mischief causing damage---Suspension of sentence---Hardened, desperate and dangerous criminal---Rash and negligent driving---Statutory period, exception to---Death of four persons---Accused was convicted and sentenced to imprisonment for seven years for causing death of four minor children---Accused sought suspension of his sentence on statutory delay in decision of appeal---Validity---Exception under S.426, Cr.P.C. provided dismissal of application for suspension on statutory period having been spent, if in the opinion of Court accused was hardened, desperate and dangerous criminal---Manner in which offence was committed showed not only callousness but also brutality on the part of accused as he had taken lives of four minor children due to rash and negligent driving of his tractor trolley during school timings which required special care---Statutory period did not apply to accused and High Court declined to have deeper appreciation of evidence---Petition was dismissed in circumstances.

Makhdoom Javed Hashmi v. The State 2008 SCMR 165; Liaqat and another v. The State 1995 SCMR 1819; Masood Khan v. The State PLD 2004 Kar. 386; Safdar Ali Shah v. The State 1997 MLD 961; Abdul Manan v. The State and others 2013 YLR 1175; Zafar Iqbal alias Malanga v. The State 2011 YLR 1547 and Naveed alias Navidi v. The State 2011 PCr.LJ 1971 distinguished.

Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403 rel.

Prince Rehan Iftikhar Sheikh for Petitioner.

Dr. Muhammad Anwar Khan Gondal, A.P.-G. along with Tariq Awan, Inspector with record for the State.

Complainant in person.

2014 P Cr. L J 1702

[Lahore]

Before Mehmood Maqbool Bajwa and Miss Aalia Neelum, JJ

MUHAMMAD ARSHAD---Appellant

Versus

ALLAH DITTA and 4 others---Respondents

Criminal Appeal No.808 of 2011, decided on 22nd April, 2014.

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

----S. 417--- Appeal against acquittal---Scope---In appeal against acquittal, Appellate Court cannot interfere in the judgment unless it finds that view of Court regarding acquittal of accused is unreasonable and perverse.

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

----S. 302--- Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd---Appreciation of evidence---Acquittal of accused---Medical and ocular evidence, conflict between---Trial Court after recording of evidence acquitted both the accused of the charge---Validity---View taken by Trial Court was just and quite reasonable, not suffering from any perversity and it was not a case of misreading or non-reading of evidence---High Court observed that there was no doubt that a person was murdered but Court was to follow evidence on record---Accused could not be convicted on the basis of unreliable and untrustworthy evidence of eye witnesses running counter to medial evidence---Prosecution failed to prove its case against accused beyond any shadow of doubt and Trial Court had rightly appreciated evidence brought on record--- High Court declined to interfere in judgment rendered by Trial Court which was not perverse---Appeal was dismissed in circumstances.

Ali Sher and others v. The State 2008 SCMR 707; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Jahangir v. Amanullah and others 2010 SCMR 491 rel.

Abdus Sattar Chughtai for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for Respondents.

2014 P Cr. L J 1716

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.33393 of 2013, decided on 13th March, 2014.

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

----S. 516-A---Constitution of Pakistan, Art. 199---Constitutional petition---Superdari---Case property---Scope---Property not subject matter of offence---Accused admitted to charges of theft of cash and gold ornaments---Accused entered into a "salsi (arbitration) agreement" with the complainant and committed to give buffaloes to the complainant as compensation in lieu of case property---Accused allegedly refused to honour his commitment, whereafter police took possession of buffaloes belonging to accused---Complainant was given possession of said buffaloes on superdari---Legality---Police took possession of buffaloes during investigation of the case, and same could not be termed as case property as the same were not stolen and complainant never claimed to have owned the same---Said buffaloes were taken into possession despite not being required in any case, therefore, they had to be returned to the accused from whom they were taken---Accused was entitled to superdari of buffaloes subject to security fixed by the Magistrate concerned---Constitutional petition was allowed accordingly.

Khalid Saleem v. Muhammad Jameel alias Billa and 6 others 1996 SCMR 1544 rel.

Ghulam Farid v. Muhammad Nawaz and another 1993 PCr.LJ 2252 distinguished.

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

----S. 516-A---Superdari of property---Principle---Case property---If property was not proved to be subject matter of offence, it should be returned to the person from whom it had been taken.

Sardara v. Boota PLD 1950 Lah. 97 rel.

Muhammad Ahsan Bhoon and Muhammad Imran Sulehria for Petitioner.

Muhammad Zafarullah for Respondent No.4.

2014 P Cr. L J 1724

[Lahore]

Before Mahmood Ahmad Bhatti, J

GHULAM ABBAS---Petititoner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.105-B of 2014, decided on 31st January, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-e-amd, common intention, abetment---Bail, grant of---Further inquiry---Non-attribution of any overt act---No active participation in the offence---Effect---Accused was alleged to have shouted a lalkara, besides provoking co-accused into firing at the deceased---Prima facie accused did not actively participate in the commission of the offence---No overt act had been attributed to the accused except that he pointed to the co-accused that deceased was heading towards them---Perusal of F.I.R. showed that accused was unarmed at the time of commission of the alleged crime, therefore question of making recovery of weapon of offence from him did not arise at all---Apparently complainant cast a wide net implicating the accused in the case on account of his close relationship with the co-accused, who made straight firing upon the deceased---Question of vicarious liability of accused could be gone into by the Trial Court after recording of evidence for the prosecution and defence---Accused had made out a case for further inquiry into his guilt, therefore, he was admitted to bail.

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

----S. 497---Bail, grant of---Scope---Commencement of trial---Effect---Accused could not be refused bail on the ground that trial had commenced---Illustration.

Mst. Maria Khan v. The State and another 2013 SCMR 49; Syed Khalid Hussain Shah v. The State and another 2014 SCMR 12 and Nisar Ahmad v. The State and others 2014 SCMR 27 rel.

Malik Naseer Ahmad Thaheem for Petitioner.

Mian Abdul Qayyum, A.P.-G. with Iftikhar, S.-I. for the State.

Ch. Khalid Mehmood Arian for the Complainant.

2014 P Cr. L J 1733

[Lahore]

Before Muhammad Anwaarul Haq, J

MUHAMMAD SAJJAD---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.9894 of 2014, decided on 27th June, 2014.

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

----Ss. 516-A & 550--- Constitution of Pakistan, Art. 199---Constitutional petition---Superdari---Vehicle suspected to be stolen seized by police---Superdari of vehicle---Tampered chassis and engine number--- Duplicate registration book--- Disputed vehicle did not have its original chassis number and even the engine number was different from the one mentioned in the duplicate registration book produced by the petitioner---Vehicle without specific identification could not be allowed to ply on the roads as the same could not be stamped to be of a particular owner---Such vehicles were a serious security threat, which could be used in criminal activities including smuggling of narcotics and bomb blasts---High Court observed that allowing such vehicles to be given on superdari on the basis of duplicate registration books of stolen or destroyed vehicles should be discouraged---Petitioner was rightly refused superdari of vehicle by courts below--- Constitutional petition was dismissed accordingly.

2005 SCMR 735 and 2002 YLR 699 distinguished.

Ch. Maqbool Ahmed v. Customs, Federal Excise and Sales Tax, Appellate Tribunal and 3 others 2009 SCMR 226 rel.

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

----Ss. 516-A & 517---Superdari of vehicle---Scope---Last possessor of vehicle---Whether entitled to superdari as of right---Under S.516-A, Cr.P.C. court could pass nay appropriate order regarding the seized property as it thought proper---Last possessor could not claim superdari of the property as of right.

Central Co-operative Bank Ltd. Sargodha v. Ahmad Bakhsh PLD 1970 SC 343 and Republic Motors Ltd. v. M. Anwar and others 1980 SCMR 954 ref.

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

----S. 516-A---Specific Relief Act (I of 1877), S. 42---Ownership of vehicle--- Application for superdari--- Civil suit--- In case of failure of an alleged owner of a vehicle to establish his entitlement to superdari in cursory proceedings before the court concerned, he had a right under the relevant law to establish his ownership before the civil court, and if any such suit was filed, the civil court could pass a decree in favour of the actual owner of the property notwithstanding any observation made in the cursory proceedings of superdari.

Humayoun Rashid for Petitioner.

Razaul Karim Butt, Assistant Advocate-General for the State with Respondent No.4 in person.

2014 P Cr. L J 1753

[Lahore]

Before Sadaqat Ali Khan, J

MUHAMMAD QASIM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.255 of 2012, heard on 5th November, 2013.

Penal Code (XLV of 1860)---

----S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Appreciation of evidence---Benefit of doubt---Allegation of "Ziaditi", was not proved in any manner against accused---Victim, never stated that she was compelled during the alleged kidnapping period to marry against her wish with the accused---Prosecution had failed to bring the guilt of accused to hilt; and Trial Court was not justified in convicting accused, basing upon untrustworthy and uncorroborated evidence deposed by interested witnesses, which even otherwise was full of material contradictions---Unreliable story was deposed by the victim, and unexplained delay had taken place in lodging the crime report---Conviction and sentence recorded by the Trial Court against accused were set aside, extending him benefit of doubt, and he was acquitted of the charges against him and was directed to be released, in circumstances.

Muhammad Shah v. The State 2010 SCMR 1009 ref.

Zafar Iqbal Awan for Appellant.

Muhammad Umair Mohsin for Respondents.

Khalid Pervaiz Uppal, A.A.-G. for the State.

Date of hearing: 5th November, 2013.

2014 P Cr. L J 1779

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD ASGHAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.28-Q of 2013, decided on 25th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Qatl-e-amd, rioting, common object, abetment---Quashing of F.I.R., petition for---Petitioner was named as one of accused in the F.I.R., and he was clearly identified as the abettor and instigator of the crime allegedly committed by co-accused---Accused had contended that since no specific charge had been laid against him in the amended charge-sheet, he stood absolved of the charge brought against him by the complainant---Validity---Petitioner was at liberty to move an application under S.265-K, Cr.P.C. for his premature acquittal---When challan had been submitted and cognizance of the case had been taken, High Court was not to interfere under S.561-A, Cr.P.C., or in constitutional jurisdiction.

Director-General Anti-corruption Establishment, Lahore and others v. Muhammad Akram Khan PLD 2013 SC 401 ref.

Peer Masood-ul-Hassan Chishti for Petitioner.

Ch. Khawar Siddique Sahi for Respondent No.2.

2014 P Cr. L J 1795

[Lahore]

Before Muhammad Tariq Abbasi, J

NAZIM HAYAT---Petitioner

Versus

GHULAM HASSAN and 2 others---Respondents

Writ Petition No.1549 of 2014, decided on 18th June, 2014.

(a) Administration of justice---

----Doing of an act---Principle---If law prescribes an act to be done in a particular manner, then it must be done in the prescribed manner or should not be done at all.

Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

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

----Ss. 205 & 540-A--- Constitution of Pakistan, Art. 199---Constitutional petition---Personal attendance, dispensing with---Non-appointing of pleader---Personal appearance of accused was dispensed with by Trial Court during trial of private complaint, without appointing any pleader--- Validity--- Exemption from personal appearance of accused could only be granted if he was represented by pleader who had to undertake before Court to be available on behalf of the accused---Trial Court while ignoring such mandatory procedure passed the order---High Court in exercise of Constitutional jurisdiction set aside application filed by accused for his exemption from personal attendance, as the same was not according to mandate/provisions of law---Petition was allowed in circumstances.

Sardar Muhammad Ijaz Khan for Petitioner.

Raja Muhammad Hameed, A.A.-G. for Respondents.

2014 P Cr. L J 1803

[Lahore]

Before Sikandar Zulqarnain Saleem and Muhammad Qasim Khan, JJ

GHULAM FARID---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.3079 of 2014, decided on 22nd May, 2014.

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

----S. 540---Summoning a person as witness---Object and scope---Court, jurisdiction of---Provision of S.540, Cr.P.C. is divided into two parts first is discretionary in nature, whereas the second is mandatory--- Solitary purpose of judicial proceedings in criminal cases is to find out truth and to arrive at a correct calculation and to see that no innocent person is punished---If it appears essential to Court that evidence is necessary for just decision of case, Trial Court is vested with jurisdiction to re-examine any witness and the only requirement is that his/her examination should be essential for the just decision of the case.

(b) Judicial proceedings---

----Object---Purpose of entire judicial proceedings is to find out truth and to arrive at correct decision.

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

----Art. 3---Competency of witness---Child witness---Principle---Child of tender age, by reason of his/her youth, is not absolutely disqualified as a witness---No precise age prescribed which determines the question of competency of a person to give evidence---In case of child witness it is immaterial whether he/she can understand and answer in rational manner questions put to him/her---No general rule of universal application can be laid down that in no case evidence of child witness be believed---Each case depends upon its particular facts and circumstances.

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

----Ss. 302 & 324---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), Ss. 200 & 540---Constitution of Pakistan, Art.199---Constitutional petition---Re-summoning of witness---During trial of private complaint on the allegations of Qatl-e-amd, attempt to Qatl-e-amd and terrorism, injured eyewitness of 10-11 years of age was given up by complainant on the plea of her being minor---Subsequently complainant filed application for re-summoning of injured girl as witness but Trial Court dismissed that application---Validity---Court had inherent powers to ensure that justice was done---In cases when court smelt foul play, it was not only justified but duty bound, in the interest of justice, to ascertain facts itself with the application of judicial mind---In the present case, there was enough material before Trial Court to come to the conclusion that in giving up the sole injured witness, complainant acted recklessly and perhaps at the instigation, if not in collusion with, persons interested in stifling prosecution case---Trial Court erred in law by not taking into consideration the cursory statement of witness in question recorded by Trial Court earlier---High Court directed Trial Court to examine injured minor girl as prosecution witness---Petition was allowed in circumstances.

Qadeer Hussain v. The State 1995 PCr.LJ 803 ref.

Malik Ali Muhammad Dhol and Khalid Abdullah Khan Chingwani for Petitioner.

Qazi Sadar-ud-Din for Respondents Nos.3 to 5.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

2014 P Cr. L J 11

[Peshawar]

Before Abdul Latif Khan, J

RAHMAT ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.9 and Criminal Revision No.2 of 2013, decided on 9th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F(iv)---Criminal Procedure Code (V of 1898), S.342---Attempt to commit Qatl-e-amd and Ghayr-jaifah Mudihah---Appreciation of evidence---Suggestions during cross-examination, non-confronting of---Trial Court drew inferences from suggestions put to complainant during cross-examination, considering the same as positive suggestions and based conviction of accused, such was not relevant and legal approach for conviction of accused in any criminal case---No evidence was available to corroborate solitary statement of complainant about occurrence but Trial Court admitting such lacuna on the part of prosecution observed that accused had not denied occurrence---Such observations were made by Trial Court on the basis of alleged positive suggestions put to complainant in cross-examination---Suggestions made by accused did not make case of admission by him and could not be termed as acceptance of occurrence by accused in the mode and manner alleged by prosecution---Accused was also not confronted with suggestions during his statement under S.342, Cr.P.C., which were made basis for conviction---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Ghulam Hur Khan Baloch for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Saifur Rahman Khan for the Complainant.

Date of hearing: 9th September, 2013.

2014 P Cr. L J 78

[Peshawar]

Before Ikramullah Khan, J

Mirza ALI KHAN---Petitioner

Versus

HIDAYAT ULLAH KHAN and another---Respondents

Criminal Miscellaneous Quashment Petition No.102-P of 2012, decided on 3rd June, 2013.

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

----Ss. 561-A & 32---Penal Code (XLV of 1860), Ss.499, 500, proviso---Constitution of Pakistan, Art.12---Defamation---Enhancement of sentence---Petition for quashing of order---Judicial Magistrate/Trial Court, convicted accused and sentenced him to pay fine of Rs.10,000 (Ten thousands)---Accused, did not challenge said conviction and sentence and deposited amount of fine---Complainant, assailed said order/judgment of the Trial Court by filing revision petition; and Revisional/Appellate Court, not only upheld conviction of accused, but also enhanced amount of fine from Rs.10,000 to Rs.100,000 (one lac)---Accused had sought quashing of said order passed by Appellate Court by filing petition under S.561-A, Cr.P.C.---Offence, as complained was committed in the year 1992, whereas proviso to S.500, P.P.C. was inserted in the year 2004---Prior to amendment, the sentence provided under S.500, P.P.C. at the time of commission of the offence, in term of fine was not specifically determined; and as 1st Class Magistrate, on the day of commission of the offence, was not authorized to inflict greater sentence in term of fine more than Rs.45,000 as envisaged in S.32, Cr.P.C., then the Revisional Court could not inflict a higher sentence than one, which might have been inflicted by a Magistrate---Substantive law, applied, amended, would not operate retrospectively, but prospectively---Section 500, P.P.C. having been amended with effect from 2004, quantum of sentence provided thereunder, and enhanced in term of imprisonment and fine, would not affect accused, purportedly committed the offence, but certainly before the said amendment---Any punishment/sentence awarded to an accused against the provisions of the Constitution, would not hold field at all---Conviction and sentence, in derogation of the provisions of Art.12 of the Constitution, could not be sustained on any ground whatsoever---Impugned judgment was set aside and case was remanded to the Appellate Court to re-hear the appeal in the light of the provision of law.

Ghulam Nabi v. The State 1996 PCr.LJ 1335; Pir ul alias Pir Bux v. The State 1992 PCr.LJ 1489 and Superintendent of Police v. Shabir Abbasi and others 2005 PCr.LJ 1524 distinguished.

Ghulam Muhammad v. Irshad Ahmad PLD 1982 SC 282; Mst. Sarwar Jan and others v. Mukhtiar Ahmad and others PLD 2012 SC 217 and Senior Member BOR and others v. Sardar Bakhsh Bhutta and others 2012 SCMR 864 rel.

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

----Ss. 32 & 439---Revisional jurisdiction, exercise of---Inflicting of higher sentence---Revisional Court, while exercising jurisdiction conferred upon it under S.439, Cr.P.C. could not inflict higher sentence, than the one which might have been inflicted by a Magistrate.

(c) Constitution of Pakistan---

----Arts. 12, 75 & 116---General Clauses Act (X of 1897), S.35---Retrospective punishment---All Federal or Provincial Acts, Ordinances, Presidential Orders and Notifications, would come into operation from the commencing day, provided thereunder, or on the day, when such legislation got assent of the President in the case of Federal Legislation; or Governor in the case of Provincial Legislation, or when specifically directed in that behalf to apply otherwise---Article 12 of the Constitution had provided such like safeguard with regard to retrospective punishment.

Muhammad Imran Khan for Petitioner.

Muhammad Arif Khan and Khalik Uzaman for Respondent.

Date of hearing: 3rd June, 2013.

2014 P Cr. L J 93

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

NAVEED ANJUM alias NAVEED HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos.45-D, 46-D and Criminal Revision No.19-

D of 2012, decided on 19th September, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. did not contain the names of accused and eye-witnesses---Eye-witnesses had been introduced in supplementary statement---Solitary witness relied upon by the prosecution to bring home guilt of accused, was nephew of the complainant; and story advanced by him did not stand to reason---Place of occurrence was a thoroughfare and there were houses of different people, but none attracted from those houses---Supplementary statement introduced by the witnesses, had been recorded after seven days of the occurrence; such delay would give an inference to the effect that second version had been introduced with deliberations, which adversely affected the case of prosecution---Complainant had not seen the occurrence; and deposition of prosecution witness who later on was introduced by the complainant, suggested that he did not witness the occurrence---No other evidence was available on the file to connect accused with commission of offence---Complainant had failed to justify his presence---Evidence of chance witness could not be relied until his presence was proved and justified---Strong corroboration was needed to make the statement admissible, which was lacking in the present case---Recovery of blood-stained earth from the place of occurrence, along with one lead of .30 bore; and Forensic Science Laboratory's positive report, did not tally the ocular account of F.I.R.---Subsequent improvement through supplementary statement made, and evidence planted, in no way had connected accused with commission of crime---Trial Court had blindly relied upon the statement of alleged eye-witness and based conviction of accused solely upon it which was highly unsafe and against the established principles of appreciating and evaluating evidence in criminal cases for awarding conviction---Complainant had been unable to make out a case warranting conviction of acquitted accused persons---Impugned judgment of conviction and sentence recorded by the Trial Court, were set aside, accused was acquitted of the charges levelled against him and he was set free, in circumstances.

(b) Criminal trial---

----Evidence---When F.I.R. was silent to charge anyone; and subsequent improvements were made by complainant adding eye-witnesses of the occurrence, such would be nothing, but malice and no credence could be given to their testimony.

Abdul Latif Khan Baloch and Saifur Rehman Khan for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Ghulam Hur Khan Baloch for the Complainant.

Date of hearing: 19th September, 2013.

2014 P Cr. L J 133

[Peshawar]

Before Lal Jan Khattak, J

SAEED AHMAD and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.96-D of 2013, decided on 3rd May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Deeper appreciation of evidence---Accused contended that they were charged for single entry wound and there were no blackening or charring marks on dead body of deceased---Validity---Each and every aspect of case was to be taken up tentatively and deep appreciation of evidence was to be avoided---Two crime empties were recovered from the spot and their having been matched with two pistols recovered from the possession of accused was reasonable ground for believing that accused were guilty of offence punishable with death---Non-existence of blackening or charring marks was to be seen when such issue would come before Trial Court as it required deep appreciation which could not be exercised by the Courts at bail stage---Bail was dismissed in circumstances.

Burhan Latif Khaisori for Petitioners.

Sanaullah Khan Shamim, D.A.-G. for the State.

Muhammad Ismail Khan Alizai for the Complainant.

Date of hearing: 3rd May, 2013.

2014 P Cr. L J 155

[Peshawar]

Before Lal Jan Khattak, J

Qazi MUHAMMAD YOUSAF---Petitioner

Versus

STATE and another---Respondents

Quashment Petition No.41 of 2013, decided on 23rd July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 379, 408 & 411---Theft, criminal breach of trust by servant and dishonestly receiving stolen property---Quashing of F.I.R.---Cognizance by Trial---Accused had sought quashing of case without availing remedy before Trial Court---Validity---When cognizance of case was taken by a Court of competent jurisdiction and date of hearing had been fixed by Court, then proper course was to apply first to Court concerned for earning acquittal under relevant provision of law---Such exercise could be done at any time even before framing of charge---Without making recourse to such remedy, rushing direct to High Court for quashing of F.I.R. under S.561-A, Cr.P.C. was beyond the mandate and scope of inherent jurisdiction conferred upon High Court---Recourse to S.561-A, Cr.P.C. would only be made in exceptional cases and circumstances, and the same was not the case of accused---High Court in exercise of inherent jurisdiction under S.561-A, Cr.P.C., declined to quash F.I.R.---Petition was dismissed in circumstances.

Muhammad Yousaf Khan for Petitioner.

Khan Wali Khan Mehsud, A.A.-G. for the State.

Date of hearing: 23rd July, 2013.

2014 P Cr. L J 173

[Peshawar]

Before Mazhar Alam Khan Miankhel and Qaiser Rashid Khan JJ

HAMAYUN---Petitioner

Versus

D.C.O., KOHAT and 6 others---Respondents

Writ Petition No.2261-P of 2013, decided on 5th September, 2013.

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

----S. 3---Constitution of Pakistan, Arts. 199, 4, 9, 10 & 15---Constitutional petition---Preventive detention---Deputy Commissioner, on the report of police, issued preventive detention order of the petitioner---Involvement of petitioner in criminal cases had been made basis for issuance of detention order---District Police Officer had failed to refer even a single unlawful activity wherein petitioner was involved---Deputy Commissioner without applying his independent mind and personal satisfaction had issued the impugned order---Such act of Deputy Commissioner was nothing but infringement of right of liberty of a person provided and protected by the supreme law of the land "the Constitution"---Liberty of human being was considered to be a right ordained by the divine and followed by the man made law---Person could not be deprived of his divine right of liberty merely on presumption, unless, there was some material and proof against him to be detained---Order lacking any such material would be nothing but nullity in law---Petitioner remained involved in some offences for which he was charged, tried and sentenced---If he once again had committed any such offence then the legal course would be to book him in relevant offence instead of going for preventive detention---Detention of the petitioner under West Pakistan Maintenance of Public Order Ordinance, 1960 could not be made just on the ground that he remained involved in criminal cases---Order of Deputy Commissioner was against the fundamental rights of citizen provided under the Constitution---Grounds for detention must be communicated to the person before his detention---Impugned order did not reveal that same was communicated to the petitioner which was bad in law and was not maintainable---Chief Secretary of the Province was directed to look into the matter---Constitutional petition was accepted and impugned order was set aside and petitioner was directed to be released forthwith if not required in any other F.I.R.---Authorities were directed to chalk out F.I.Rs. against the petitioner if he was actually involved in any criminal activity---Deputy Commissioner was directed to do what was required by law to do and not to try to play with the law in such like manner.

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

----Preamble---Purpose and object of West Pakistan Maintenance of Public Order Ordinance, 1960 was the preventive detention and control of persons and publications for reasons, connected with public safety, interest and maintenance of public order---Act/activity complained of a person must be an act prejudicial to the public order and its outcome or result would directly affect the public at large---When an act or activity of person was there then the Provincial Government or the person authorized in such behalf had the ample material to take action or pass an order under S.3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and same would be within the theme of law---Where an act or activity was person specific and did not amount to an activity prejudicial to the public peace and tranquillity same could in no way be encompassed within the sphere of the Ordinance and that would be out of the scope of the law.

Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home 1994 SCMR 1532 and Masal Khan v. District Magistrate, Peshawar and others PLD 1997 Pesh. 148 rel.

M. Amin Khattak Lachi for Petitioner.

Qaiser Ali Shah, Additional A.-G. for Respondents.

2014 P Cr. L J 197

[Peshawar]

Before Rooh-ul-Amin Khan, J

ASAL MAR DIN---Petitioner

Versus

FARID GUL and 2 others---Respondents

Quashment Petition No.28-B of 2013, decided on 28th October, 2013.

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

----S. 169---Release of accused when evidence is deficient---Scope and applicability of S.169, Cr.P.C.---Investigating Officer, powers of---Scope---Investigating Officer, under S.169, Cr.P.C. is only empowered to release person in custody, on executing a bond, if he reaches the conclusion that sufficient evidence or reasonable grounds are not available to justify forwarding accused to Magistrate---When there is a set of prosecution evidence on one side and defence evidence on the other, Trial Court is empowered to weigh both sets of evidence on judicial scale to rely on one and discard the other---Theme of S.169, Cr.P.C. does not admit any such power of Investigating Officer to evaluate defence evidence of accused and prefer it over prosecution evidence to declare accused innocent.

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

----Ss. 169 & 561-A---Releasing of accused on personal bond---Administrative order, setting aside of---Inherent powers of High Court---Scope---Complainant, in the present case, was aggrieved of releasing accused by Investigating Officer against personal bond---Validity---Police officer, while taking personal bond and releasing accused, had pre-empted powers and jurisdiction of Magistrate, which amounted to flagrant violation of law and abuse of process of Court---High Court, in exercise of its inherent jurisdiction under S.561-A, Cr.P.C. had ample power to set aside even an administrative order passed under Criminal Procedure Code, 1898, if found arbitrary, fanciful, capricious or passed in colourful exercise of power---High Court, in exercise of jurisdiction under S.561-A, Cr.P.C. set aside the order passed by Investigating Officer and the same was quashed and bail of accused was cancelled--- Petition was allowed accordingly.

Sifat Ali Khan for Petitioner.

Qudrat Ullah Khan, DAG for the State.

Mir Zali Khan for Respondents.

Date of hearing: 28th October, 2013.

2014 P Cr. L J 226

[Peshawar]

Before Lal Jan Khattak, J

SHAH BEHRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.94 of 2013, decided on 6th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Recovery of weapon---Matching of crime empty---Evidence, tentative assessment of---Police was informed by complainant of case on spot who chased accused and arrested one of them while the other ran away---Arrested accused disclosed name of other accused to police and on his arrest pistol was recovered by police which was taken into possession---Crime empty recovered from spot by police and pistol recovered from accused were sent to Forensic Science Laboratory---Report of Laboratory showed that empty was fired from the pistol recovered from possession of accused---Two constables who chased accused also recovered motor cycle from the possession of accused colour and registration number of which were the same given by complainant in F.I.R.---Tentatively accused was reasonably connected with commission of offence which fell within the restrictive clause of S.497, Cr.P.C.---Bail petition was dismissed in circumstances.

Saif-ur-Rehman Khan for Petitioner.

Sanaullah Khan Shamim, D.A.-G. for the State.

Muhammad Abdullah Baloch and Sh. Imran Ullah for the Complainant.

Date of hearing: 6th May, 2013.

2014 P Cr. L J 244

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

WAHID BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.34-D of 2012, decided on 2nd July, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Three accused were charged initially in promptly lodged F.I.R., but effective role was given to accused---Version given by the complainant in the F.I.R., had fully been supported by prosecution witnesses---Minor discrepancies in the evidence, could not be considered for acquittal of accused---Eye-witnesses had deposed without any material contradictions; they were subjected to taxing cross-examination, but nothing adverse to the prosecution, had been brought out from them---Mere relationship of complainant and eye-witnesses, would not disqualify a witness to be a truthful and natural witnesses; their testimony could not be thrown away on account of their relationship---No justification existed as to why the complainant and the eye-witnesses would falsely implicate accused, or substitute them for the real culprits---No possibility was available for disbelieving the complainant and eye-witnesses---Accused and eye-witnesses being from the same village, element of identification, could not be doubted---Discrepancies, tried to be pointed out by counsel for accused in the prosecution evidence, would not affect the case of the prosecution, as same in no way could be termed as grave, so as to damage the substance of the prosecution case---Guilt of accused was established through cogent and confidence inspiring evidence---Motive of the murder of deceased was not established---Accused remained absconder for a period of almost one year, and weapon of offence had been recovered from accused--- Medical evidence and the time given in the Murasila and the post-mortem report, were in line with each other---Ocular account, recoveries and the medical evidence were in consonance with the version made by the complainant---Prosecution had succeeded to bring home guilt of accused---Since the motive to kill the deceased could not be proved by the prosecution, sentence awarded to accused by the Trial Court, seemed to be justified, which warranted no interference---No role of firing having been attributed to acquitted co-accused, and sharing of common intention by them being doubtful, they were rightly acquitted by the Trial Court.

Farooq Akhtar and Burhan Latif Khaisori for Appellant.

Khan Wali Khan, Additional A.-G. for the State.

Saifur Rahman Khan for the Complainant.

Date of hearing: 2nd July, 2013.

2014 P Cr. L J 265

[Peshawar]

Before Malik Manzoor Hussain, J

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

WAHID---Respondent

Criminal Appeal No.339 of 2013, decided on 11th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Limitation Act (IX of 1908), S.5---Cheating; forgery for purpose of cheating; and using as genuine a forged document---Appeal against acquittal---Delayed sanction---Condonation of delay---Plea raised by authorities that delay had been caused due to lengthy procedure of sanction from concerned quarters---Validity---Provision contained in special law prevailed upon provision contained in general law---Criminal Procedure Code, 1898, having been provided limitation, provisions of Limitation Act, 1908, could not be invoked---Appeal filed after expiry of 30 days was barred by time and there was no justification that leniency should be shown in case of appeal filed by State---Court of law could not adopt a different yardstick for the State, in case of limitation---Appeal was time barred and no justification was shown by the State for condonation of delay---Double presumption of innocence was attached to order of acquittal passed by a Court of competent jurisdiction and in extraordinary cases, where judgment was found to be perverse, shocking or suffering from error of jurisdiction, Appellate Court could interfere---Appeal was dismissed in circumstances.

Mujahid Khan, D.A.-G. for the State.

2014 P Cr. L J 297

[Peshawar]

Before Nisar Hussain Khan, J

MUHAMMAD SHARIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1623-P of 2013, decided on 26th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.18(b) & 22(b)---Causing any person to emigrate fraudulently, receiving money for providing foreign employment---Bail, grant of---Further inquiry---Sections of law mentioned in the F.I.R., provided two alternate punishments of imprisonment of 14 years, or fine, or both---Bail was allowed on the principle that when statute provided two punishments, then for the purpose of bail, the lesser one was considered---No enmity existed between the parties, except the present dispute, which could be settled amicably---Case of accused being one of further inquiry, he was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

M. Iqbal Mohmend, DAG for the State.

S. Abdul Fayaz for Respondent No.2.

Date of hearing: 26th December, 2013.

2014 P Cr. L J 323

[Peshawar]

Before Dost Muhammad Khan and Waqar Ahmed Seth, JJ

TAJ WALI SHAH---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.78, Criminal Appeals Nos.98, 81, Criminal Revision No.51 and Murder Reference No.4 of 2011, decided on 22nd May, 2013.

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

----S. 164---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Confessional statement---Procedure---Handing of accused to police custody---Magistrate, at the time of recording confessional statement gave time to accused to decide about making of statement and after 30 minutes re-summoned the accused in Court and got recorded his statement---Validity---Such was no way of recording confession of accused in murder case---Once accused, in a murder case, was entrusted to custody of Magistrate, the Magistrate was required to clear his Court room from all police officials/officers in uniform or in plain clothes and accused was to be provided chair and dice, also disclosing to him that he was in safe and secured hands of Magistrate and he would not entertain any fear of police---Magistrate was also to infuse courage and confidence into accused and was to provide assurance that in case he did not make confession, he would not be handed over back to police--- Simply filling of printed pro forma or dictating such important matters to typist was not a faithful obligation under law---Magistrate had shown irresponsible attitude while dealing with such sensitive matter and had violated clear instructions of High Court---Confessional statement was not relied upon in circumstances.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Confession, rejection of---Delay in sending crime weapon and empties---Once confession was rejected, being unnatural, clashing with ocular account and not fairly corroborated through trustworthy and unimpeachable corroboratory evidence, no capital punishment could be awarded on such retracted confession because of rule of caution and warning and also of prudence exercised in administration of criminal justice---High Court disbelieved mode and manner of recoveries and arrest of accused persons in the manner stated by prosecution---Opinion of arms expert, where pistol and crime empties were sent for forensic report with 6 days delay also could not be relied upon and was discarded---Prosecution failed to prove guilt of all three accused beyond any shadow of doubt---Only one doubt if found reasonable, would entitle accused person to acquittal---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Imran Bashir Farooqi v. The State 1990 PCr.LJ 677; Bahadur Khan v. The State PLD 1995 SC 336 and Gulistan and others v. The State 1995 SCMR 1789 rel.

Noor Alam Khan for Appellant.

F. M. Sabir for the State.

Shakeel Khan Gillani for the Complainant.

Date of hearing: 22nd May, 2013.

2014 P Cr. L J 346

[Peshawar]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

NUMAN---Appellant

Versus

RAJA KHAN and another---Respondents

Criminal Appeal No.385-P of 2013, decided on 28th August, 2013.

Penal Code (XLV of 1860)---

----S. 365-A---Kidnapping or abduction for ransom---Appreciation of evidence---Benefit of doubt---Co-accused had been acquitted by the Trial Court on the same evidence, and said acquittal had not been challenged, either by the complainant party, or by the State---Only evidence available, was in the shape of confession by acquitted accused---Alleged abductee never appeared before the court for recording his statement, nor any identification parade had been held, after arrest of accused, so as to connect him with the commission of crime---No incriminating material was available on the file to connect accused, except the bare allegation in the F.I.R.---Neither alleged abductee had been recovered from the custody of accused, nor the ransom amount was established to have been passed on to the accused---Mere assertion of the complainant that accused had a hand in the affairs, without positive attempt on his part to substantiate the same, was of no consequence---Complainant had made a volunteer statement that he had compounded the offence with accused in order to maintain cordial relations between them---No case of abduction or kidnapping was made out, and ingredients of offence against accused were not attracted in the case---While extending the benefit of doubt in favour of accused, in the given facts and circumstances of the case, accused had been found entitled to earn acquittal---Conviction and sentence of accused recorded by the Trial Court against accused, were set aside, and he was acquitted of all the charges levelled against him and was set at liberty, in circumstances.

Khizar Hayat for Appellant.

S. Qaisar Ali Shah, AAG for the State.

Date of hearing: 28th August, 2013.

2014 P Cr. L J 354

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

SIYAR MUHAMMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.125 of 2008, decided on 21st May, 2013.

(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---Prosecution case was based on the statement of complainant, who was brother-in-law of deceased, and a prosecution witness, who was tenant of the deceased---Acquitted accused, allegedly opened indiscriminate firing at the deceased, but no empties were recovered from the place of crime, nor the blood recovered from the place where presence of deceased was shown in the site plan---Blood was found at a different place---No straight fire, had hit the deceased---Two eye-witnesses had stated that there was indiscriminate firing, but no bullet mark, were found from inside or outside of the baithak---Medical evidence belied the ocular testimony of eye-witnesses---Presence of said two witnesses had rightly been found as doubtful by the Trial Court---Prosecution failed to produce confidence inspiring, trustworthy and consistent evidence against acquitted accused---Presence of eye-witnesses at the spot did not appear to be confidence inspiring as they had failed to produce plausible explanation for justifying their presence at the spot, at the time of occurrence---Medical evidence and site plan also negated the version given by eye-witnesses---No independent and disinterested witness from locality had been produced in trial, in order to corroborate the ocular account of eye-witnesses---No credible evidence was available to support the prosecution case---Trial Court properly thrashed the entire evidence, before passing the impugned judgments of acquittal---Accused, persons were rightly acquitted by the Trial Court and impugned judgments did not require interference---Both appeals being devoid of any merit, were dismissed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---If any one reason would create reasonable doubt in a prudent mind regarding presence of witness, that alone be sufficient for discarding statement of that witness.

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

----S. 417(2-A)---Appeal against acquittal---Principles---With the acquittal, the presumption of innocence of accused would become double---Till found guilty accused was innocent---Unless ground on which Trial Court had purported to acquit accused were not supported from evidence on record or was perverse, and reasons given were artificial and ridiculous, Appellate Court would not interfere---Law required that a judgment of acquittal would not be disturbed, even though different opinion could be possible.

1983 SCMR 1992; PLD 2009 SC 53 and 2013 SCMR 565 rel.

(d) Criminal trial---

----Benefit of doubt---For giving the benefit of doubt to accused it was not necessary that there would be many circumstances, but a simple circumstance, which would create reasonable doubt in a prudent mind, was sufficient to entitle to the benefit, not as a matter of concession or grace, but as a matter of right.

Khawaja Muhammad Khan Gara for Appellant.

Siraj Muhammad for the Complainant.

Aabda Safdar for the State.

Date of hearing: 21st May, 2013.

2014 P Cr. L J 404

[Peshawar]

Before Waqar Ahmad Seth, J

IZZAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.79-P of 2012, decided on 14th September, 2012.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd, common intention---Recording of statement of material witness---Accused (petitioner) was alleged to have committed the murder of his younger brother (deceased)--- Complainant (respondent) filed application under S.540, Cr.P.C. for recording statement of mother of both accused and deceased as prosecution witness---Trial Court allowed said application---Validity---Fact that statement proposed to be recorded was of a person, who was mother to both accused and deceased, was sufficient for recording her statement and it would cause no prejudice to the accused rather a natural witness as her statement would help in deciding the matter on true facts, especially in circumstances when no mala fide had been alleged---Mother seemed to be a material witness whose evidence would affect the fate of the case, thus , such a witness must be summoned before conclusion of inquiry and trial---Revision petition was dismissed in circumstances.

PLJ 2004 SC 642 rel.

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

----S. 540---Jurisdiction and power of court to summon any person as witness---Scope---Where it appeared essential to the court that the evidence was necessary for just decision of the case, the Trial Court was vested with the jurisdiction to call any witness---Summoning or examining any person was the power of the Trial Court, where evidence of any person appeared to be essential to the just decision of the case.

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

----S. 540---Power of court to summon material witness or examine persons present---Purpose---Main thing underlining S.540, Cr.P.C. was to empower the court to adopt all possible devices in accordance with the law to discover the truth and thus give it a free hand, even to summon or recall a witness---Court had to exercise such power judiciously for just decision of the case, keeping in view circumstances of each and every case.

PLJ 2004 SC 642 rel.

Numan ul Haq Kakakhel for Petitioner.

Arshad Ali Nowsherwi for the Complainant.

Danial Khan Chamkani for the State.

Date of hearing: 14th September, 2012.

2014 P Cr. L J 429

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUHAMMAD BILAL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1596-P of 2013, decided on 5th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), S.18(a)(b)---Passports Act (XX of 1974), S.6---Sending people abroad on forged documents---Bail, grant of---Further inquiry---Except recovery of six passports along with two photo changed passports, nothing was on record to show that accused was involved in illegal business of sending people abroad through forged documents---Section 6 of the Passports Act, 1974 was attracted in the present case, for which maximum punishment was three years, or with fine or with both, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Case of accused was arguable for the purpose of bail on account of further inquiry which entitled accused for concession of bail---Accused having made out a case for bail, grant of bail was a rule and its refusal an exception---Accused was ordered to be released on bail, in circumstances.

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

Arshad Hussain Yousafzai for Petitioner.

Javed Ali Asgher for the State.

Date of hearing: 5th December, 2013.

2014 P Cr. L J 454

[Peshawar]

Before Qaiser Rashid Khan, J

SALAM NOOR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.156-P of 2013, decided on 1st March, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, refusal of---Narcotic hidden in a vehicle---Driver of vehicle, liability of---Conscious knowledge of presence of narcotic---Scope---Accused was driving a truck, which was stopped at a police checkpoint---Upon search of the truck 40 packets of narcotic weighing 40 kilograms were found from the spare tyre of the vehicle---Plea of accused was that he did not have any conscious knowledge of the narcotic in the spare tyre, and that co-accused, who was sitting in the front seat of the truck, had already been granted bail---Validity---Driver of the vehicle was supposed to be custodian of the same---Merely shrugging of shoulders by the accused that he had no conscious knowledge of what was present in the spare tyre of the vehicle was a self-defeating argument---Report of Forensic Science Laboratory in respect of all the samples was in the affirmative---Case of accused was different from the co-accused, who had been granted bail on the grounds that he was not driver of the vehicle, therefore, he could not be saddled with responsibility of possession of contraband recovered from spare tyre of the vehicle---Accused was prima facie connected with the commission of the offence---Bail petition was dismissed accordingly.

Miss Farhana Marwat for Petitioner.

Alamgir Khan, DAG for the State.

Date of hearing: 1st March, 2013.

2014 P Cr. L J 465

[Peshawar]

Before Waqar Ahmad Seth, J

MUMTAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.686-A of 2012, decided on 4th January, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, possession of illegal weapons---Bail, refusal of---Deceased implicating accused before his death---Effect---Accused persons allegedly fired at the deceased and injured witness---Although some of the prosecution witnesses resiled from their statements and negated version of complainant, but most important piece of evidence was statement of deceased recorded under S.161, Cr.P.C. two days before his death, wherein he categorically charged accused persons for causing him injuries by firing---Deceased was the principle witness and was likely to know more than any other persons about the cause of his death--- Medical evidence and firearm expert's report also supported the version of prosecution---Trial had not commenced and evidentiary value and veracity of statement of deceased was to be determined by the Trial Court after recording of evidence---Accused persons were prima facie connected with the commission of the offence, which fell within the prohibitory clause of S.497, Cr.P.C.---Bail application was dismissed in circumstances.

Abid Ali v. The State 2011 SCMR 161; Muhammad Umar v. The State and another PLD 2004 SC 477; Sanjay Chandra and others v. Central Bureau of Investigation and others 2012 SCMR 1732; Pur Bux v. The State 2012 SCMR 1955; Rehmat Ali, and another v. The State 1979 SCMR 30; Ghulam Abbas v. The State 1996 SCMR 978; Roshan Din and another v. The State 2001 MLD 1890; Muhammad Ali v. The State 2008 PCr.LJ 87; Mitho Pitafi v. The State 2009 SCMR 299; Maulvi Hanif v. The State 2007 YLR 388; Nazar Hussain v. The State and another 2008 PCr.LJ 1505; Ijaz Ahmad and another v. The State 1997 SCMR 1279; Gul Hassan v. The State 2002 MLD 1502 and 1990 SCMR 307 ref.

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

----S. 497---Bail---Assessment of evidence---Scope---At bail stage court had to tentatively form its opinion by assessing the evidence available on record without going into merits of the case.

Saeed Akhtar Khan for Petitioners.

Muhammad Nawaz Khan Swati, A.A.-G. for the State.

Date of hearing: 4th January, 2013.

2014 P Cr. L J 475

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. RIAZ BIBI---Petitioner

Versus

MUHAMMAD RIAZ and 2 others---Respondents

Criminal Miscellaneous No.525 of 2011, decided on 4th February, 2013.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302/34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-e-amd, common intention, possession of illegal weapons---Application for cancellation of bail, dismissal of---Implication on basis of supplementary statement under S.164, Cr.P.C. recorded belatedly---Effect---Accused persons were alleged to have murdered the deceased---Occurrence took place at night and no one had been charged by the complainant in the F.I.R., despite the fact that complainant immediately inquired from the deceased about his injuries before he died---Brother of deceased charged the accused persons in his statement under S.164, Cr.P.C., about 3-1/2 months after the occurrence without disclosing his source of information---Complainant alleged that she saw a (single) unknown person in the house at the time of the occurrence, whereas brother of deceased had nominated present two accused persons in his statement under S.164, Cr.P.C.---Although weapon had been recovered allegedly at pointation of one of the accused but the Forensic Science Laboratory report was yet to be received---Petition for cancellation of bail was dismissed accordingly.

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

----S. 497(5)---Cancellation of bail---Scope---Once concession of bail was extended by a court of competent jurisdiction, in normal circumstances, the same was not to be interfered with unless the order was perverse or not tenable on the face of the record.

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

----Ss. 497(5) & 193(2)---Power of Sessions Judge to make over (entrust) a case to the Additional Sessions Judge---Scope---Sessions Judge entrusted a bail petition to Additional Sessions Judge, who allowed the same---Sessions Court commenced trial after submission of challan---Complainant moved petition for cancellation of bail on fresh grounds, which was kept by Sessions Judge and not entrusted to the Additional Sessions Judge---Plea of complainant that trial and bail cancellation petition ought to have been decided by the Additional Sessions Judge, who had dealt with the bail application of the accused---Validity---Criminal cases were made over (entrusted) to Court of Additional Sessions Judge by the Sessions Judge, within the meaning of S.193(2), Cr.P.C., and while entrusting the case, Sessions Judge was not supposed to entrust trial of case to an Additional Sessions Judge, who had either dealt with the bail or bail cancellation petition of accused---Retention of trial and bail cancellation petition on fresh grounds by the Sessions Judge was justified in circumstances---Petition was dismissed accordingly.

Mushtaq Ali Tahirkhel for Petitioner.

Qazi M. Arshid for official Respondents.

M. Nawaz Khan Swati???????????????? for Respondents.

Date of hearing: 4th February, 2013.

2014 P Cr. L J 494

[Peshawar]

Before Ikramullah Khan, J

SHAH ZAIB---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail A. No.645-P of 2013, decided on 18th June, 2013.

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

----S. 497 & 161---Qanun-e-Shahadat (10 of 1984), Art.38---Bail---Examination of witness by police---Confession to Police Officer---Statements recorded under S.161, Cr.P.C, were not admissible in evidence as per provisions contained under Art.38 of the Qanun-e-Shahadat, 1984 but once a statement recorded by Police themselves, bringing on record prima facie detachment of an accused of commission of the offence in question, then same at least could be considered for the purpose of bail keeping in view the attending circumstances.

Ali Rehman v. The State 2011 PCr.LJ 1182 rel.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Contrabands, were recovered from the secret cavities made in the car, while no incriminating piece of evidence was available on record to prima facie connect accused, either with the ownership, possession of contraband or the car---Mere presence of a person in a car, did not mean that he was involved in trafficking the narcotics in question---Both the accused hailed from one and the same area while the principal accused was a taxi driver, prudently, if assessed, the possibility could not be ruled out that accused might have engaged him to lead him to his house---Irrespective of the quantity of the recovered narcotic substances, quantity would not be a yardstick for the purpose of granting bail or otherwise; court had to pay due consideration to the facts of the case individually in order to arrive at just and fair conclusion in dispensation of justice---Accused as per the prosecution case, was of 16/17 years of age and fell within the definition of "juvenile person"---Accused being first ever involved in such like case, and he had no criminal history instead of keeping a juvenile in judicial lock-up, justice demanded to be dealt with a lenient view---Petition of accused was accepted and he was admitted to bail.

Ayub Khan v. The State 2012 YLR 1015 and Raheem Dad v. The State 2012 YLR 2590 rel.

Nasruminallah for Petitioner.

Muhammad Ilyaas for the State.

Date of hearing: 18th June, 2013.

2014 P Cr. L J 516

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

Mst. THELAY DARA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.601-P of 2011, decided on 28th November, 2013.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Contradictions and inconsistencies in the statements of the star witnesses of the prosecution, could not be considered so material so as to shatter and make doubtful the recovery of the contraband---Such discordant and conflicting portion of evidence, could at the most be termed as human error---Recovery of contraband could not be doubted, when there was no defence and explanation against, prima facie, established recovery of narcotics by accused as required under S.29 of Control of Narcotic Substances Act, 1997---No enmity of the prosecution witnesses, who were Police Officials, with accused, was ever suggested by accused---No explanation came forward from the side of accused as to for what purpose, she was present there with her co-accused, having no relation with him---In absence of any such explanation and simple denial by accused, would be sufficient to prove her guilt---Weight of recovered substance, was less than the quantity as prescribed in proviso to S.9(c) of the Control of Narcotic Substances Act, 1997---Accused, in circumstances, had become entitled to the benefit of a borderline case---Accused was a first offender having no previous history of being involved in such like cases---Accused being woman, would deserve leniency---Sentence awarded to accused being too harsh, called for reduction---Maintaining conviction of accused, her sentence was reduced from 'Twenty-Five' years R.I. to 'Ten' years R.I., and that of fine from Rs.1,00,000 to Rs.50,000.

Alamgir Wazir Banna for Appellant.

Rabnawaz Khan, A.A.-G. for the State.

Date of hearing: 28th November, 2013.

2014 P Cr. L J 534

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment Petition No.136-D of 2013, decided on 24th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A--- Pakistan Arms Ordinance (XX of 1965), S.13---Possessing unlicensed arms---Petition for quashing of order---Prosecution produced three witnesses, who were all Police Officials, and abandoned the other witnesses being unnecessary---Occurrence took place in abadi of village where inhabitants were present, but none out of private persons, were made witness to the recovery memo---Police Officer had admitted that he could not name any person, who refused to record the statement, or to become a witness to the recovery memo---Police Officer had also admitted that he had not asked accused, as to whether alleged weapon was licensed or otherwise---All proceedings were conducted by Police Officer in the Police Station---Recovery allegedly made from accused had not been proved through tangible evidence---Investigating Officer had not prepared the recovery memos while taking into possession kalashnikov and rounds---Possibility of false implication of accused could not be ruled out---Deficiencies in the prosecution case, were not curable---Innocent person could not be connected with the commission of offence despite numerous lacunas left by the prosecution in the case---Both courts below had failed to appreciate the evidence, and had wrongly convicted and sentenced accused in spite of the fact that no case was made out against accused--- Quashment petition was accepted and impugned judgment passed by courts below were set aside and accused was acquitted from the charges levelled against him, and sureties were set free from the liability of bail bond.

Iftikharul Haq Sheikh for Petitioner.

Muhammad Haroon Awan, D.A.-G. for the State.

Date of hearing: 24th October, 2013.

2014 P Cr. L J 545

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

ZAHIDULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.27-B and Murder Reference No.1-B of 2008, decided on 28th November, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Motive of occurrence, which was family honour, had fully been proved---Guilt of accused had been proved from the confidence inspiring testimony of the eye-witnesses; which got support from accused's arrest from the spot, recoveries and report of experts---Case being of single accused, it was highly improbable to say that accused had been substituted with the real culprit---Charge against accused having been proved beyond any shadow of doubt, he had rightly been convicted---Case was not of grave and sudden provocation, but the offence was committed due to gharit/family honour---Normal penalty of death, would meet the ends of justice, in circumstances---Conviction and sentence of death awarded to accused, stood confirmed and murder reference was answered in affirmative.

Muhammad Amir v. The State PLD 2006 SC 283 rel.

Khawaja Muhammad Khan Gara for Appellant.

Saifur Rehman Khattak, A.A.-G. for the State.

Ghulam Mohi-ud-Din Malik for Respondent No.2.

Date of hearing: 28th November, 2013.

2014 P Cr. L J 587

[Peshawar]

Before Yahya Afridi and Syed Afsar Shah, JJ

ATTA-UR-REHMAN alias TAWAR---Appellant

Versus

ZUHAIB ALI and another---Respondents

Criminal Appeal No.348-P of 2012 with Murder Reference No.15 of 2012, decided on 18th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 452---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Sentence, reduction--- Mitigating circumstance--- Dying declaration---Scope---No reason existed to disbelieve dying declaration of deceased, then injured---Dying declaration of deceased then injured was also corroborated by ocular account furnished by the eye-witnesses---Both eye-witnesses had furnished the natural and straightforward account in respect of the occurrence, by recounting the facts mentioned by the deceased then injured in his F.I.R.---Eye-witnesses were subjected to lengthy searching and taxing cross-examination, but nothing could be extracted from their mouths, which could diminish the probative worth of their testimony---Absolutely no conflict was noticed between account narrated by prosecution witnesses and the entries made in the site plan---No inconsistency existed between the dying declaration made by the deceased, then injured, ocular account furnished by the two eye-witnesses and medical evidence, rather it supplemented each other---Account furnished by the official witnesses, including the medical officer also appeared to be natural and straightforward, without any significant discrepancy in their version---Minor discrepancies/ omissions, if any, on the part of the prosecution in the matter, was not of much importance when the entire evidence available on record appeared to be trustworthy---Charge against accused having been proved beyond any reasonable doubt, he had rightly been convicted by the Trial Court---Record did not show with certainty that it was the shot of accused, and not that of the absconding co-accused, which killed the deceased---Sentence of death awarded to accused by the Trial Court was converted into imprisonment for life, in circumstances---Benefit of S.382-B, Cr.P.C., would also remain intact.

Allah Dad and others v. The State 1995 SCMR 142 and Habib-ur-Rehman and another v. The State PLD 1994 Pesh. 126 rel.

Khawaja Muhammad Khan Gara for Appellant.

Kamran for Respondents.

Miss Zarmena for the State.

Date of hearing: 18th June, 2013.

2014 P Cr. L J 620

[Peshawar]

Before Assadullah Khan Chamkani, J

YASER REHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal M. (BA) No.442 of 2012, decided on 4th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), S. 336--- Juvenile Justice System Ordinance (XXII of 2000), S. 10---Itlaf-i-salahiyyat-i-udw---Bail, grant of---Plea of juvenility was accepted---Impact of jail on accused's educational career considered---Accused was alleged to have inflicted a grievous injury on the eye of the complainant---Accused was a minor and was aged about 16 years at the time of occurrence, which fact was supported by his school certificate---Alleged offence did not fall within the prohibitory clause of S.497, Cr.P.C. and in such like cases grant of bail was a rule and refusal thereof an exception---Accused was a regular student of 10th class and his stay in jail with hardened criminals would spoil his character and his educational career would also be badly affected inside jail--- Investigation on the case was complete and accused was no more required for further investigation---Accused was released on bail, in circumstances.

Abdul Jalal for Petitioner.

Muhammad Javid, DAG for the State.

Muhammad Zahir Shah for Respondent No.2.

Date of hearing: 4th September, 2012.

2014 P Cr. L J 624

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

ZAMIN SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No.279-P of 2013, decided on 15th April, 2013.

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

----S. 497---Bail, grant of---Scope---Sine qua non for releasing an accused on bail was that the court should come to the conclusion that there were no reasonable grounds to believe that he had committed a non-bailable offence as provided under Ss. 497(1) & 497(2), Cr.P.C., or to prevent abuse of process of the court or to do justice, keeping in view particular facts of each case.

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

----S. 497---Bail, grant of---Scope---Non-bailable offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Bail for such an offence was not to be granted as a matter of course, with the simple phrase that it was a case of further inquiry, without keeping in view the entire provision of S.497, Cr.P.C.

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

----S. 497--- Bail--- Scope---Material/evidence available on record, assessment of---At bail granting stage the material available on record was to be sifted through tentatively in order to establish whether prima facie the accused before the court could be connected with the crime in question or not.

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

----S. 497(2)--- Penal Code (XLV of 1860), S. 337-A(iii)---Shajjah-i-hashimah---Bail, grant of---Further inquiry---Accused allegedly gave beating to the injured complainant as a result of which the latter sustained injury on his nose--- Injury received by complainant was shown as shajjah-i-hashimah under S.337-A(iii), P.P.C. by the medical officer, however there was no medical report of ENT doctor or any X-ray film available on record to support such an opinion---Complainant was discharged from hospital on the day following the injury--- Case against accused required further probe in such circumstances---Under S.337-A(ii), P.P.C. accused was liable to arsh and might also be punished with imprisonment which might extend to ten years as tazir, therefore, awarding of imprisonment was discretionary and the court might or might not impose it upon the accused at the time of recording conviction---Withholding of bail in such circumstances would amount to punishing the accused before finding him guilty of commission of the offence---Nothing incriminating was recovered from accused while he was in judicial lock-up---Accused was granted bail in circumstances.

Muhammad Sajid Khan for Petitioner.

Fazlur Rahman Khan, Additional A.-G. for the State.

Shahid Naeem for the Complainant.

Date of hearing: 15th April, 2013.

2014 P Cr. L J 644

[Peshawar]

Before Syed Afsar Shah, J

Mst. NAWSHOD BIBI---Appellant

Versus

SHERIN KHAN and 4 others---Respondents

Criminal Appeal No.37-B of 2013, decided on 16th September, 2013.

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

----Ss. 337-F(ii), 452, 354 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Causing badi'ah, house-trespass, assault or criminal force to woman with intent to outrage her modesty, common intention---Appeal against acquittal---Appellant/complainant, initially made a report to the Police Station and levelled the allegation of beating, but later on when she filed a complaint in the Court of Illaqa Magistrate, she charged the accused for dragging her to the public, outraging her modesty and beating---Complaint which was altogether with different version had been filed after a delay of about eight months of the report made to the Police---Son of the complainant and other persons were present at the time of occurrence but none of them tried to intervene---Beating of the mother and even outraging her modesty in the presence of her son, and non-interference on his part, was yet another factor, which had given a serious jolt to the story of the prosecution---Evidence adduced by the prosecution was pregnant with doubts and inconsistencies---Double presumption of innocence was attached to the order of acquittal passed by the court of competent jurisdiction---Findings of acquittal, neither could be reversed, nor upset, except when the judgment was perverse, shocking and suffering from error of jurisdiction, or misreading or non-reading of evidence---Judicial Magistrate having rightly acquitted accused, said findings of acquittal could not be differed---Same were maintained and appeal against acquittal was dismissed.

Ghulam Sikandar and another v. Mumraiz Khan and others PLD 1985 SC 11; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

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

----S. 417(2-A)---Appeal against acquittal---Order of acquittal passed upon a complaint---If order of acquittal was passed in a case instituted upon complaint, and the High Court on an application made to it by the complainant in that behalf would grant special leave to appeal from the order of acquittal, the complainant could present such appeal to the High Court.

Muhammad Farooq Khan Sokavi for Appellant.

Date of hearing: 16th September, 2013.

2014 P Cr. L J 715

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

SULTANAT KHAN---Appellant

Versus

The STATE and another---Respondents

Jail Criminal Appeal No.132 of 2008, decided on 12th June, 2013.

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

----Art. 46---Dying declaration---Making dying declaration as basis for conviction---Requirements---Statement of a deceased, then injured, in the form of F.I.R., could be treated as a dying declaration, per se for sustaining conviction of accused on a capital charge, but to make it basis for conviction, the prosecution was required to establish; firstly, that the dying man was in full senses, conscious and alert to surrounding, was fully oriented in space and time, and was able to make a coherent statement; secondly, that the dying declaration rang true, and was sound in substance to be relied upon; thirdly, that it was free from promptness given by the outside quarter and fourthly, that the doctor present at the occasion, would give a fitness certificate about the condition of the dying man to make statement.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd---Appreciation of evidence---Recording of dying declaration---Benefit of doubt---No doubt, a certificate regarding consciousness of injured complainant was on record, but same could not be relied upon because according to said certificate, the Doctor examined injured complainant at 12.30 hours, while, prosecution witness, who recorded the report of the complainant had stated that he reached the hospital at 13.00 hours---Said prosecution witness, though had stated that he recorded the report of the injured complainant lady, but there was nothing in his statement regarding preparation of her injury sheet, or handing over her to Medical Officer, or presence of doctor at the relevant time, and obtaining fitness certificate from him---Doctor when appeared as prosecution witness, had neither testified the same, nor the same had been exhibited in his statement---Inconsistency existed regarding the time of arrival of the deceased, then injured to the hospital---Doctor had not stated about his presence with the Police at the time of report, which made the story of prosecution doubtful---Witnesses produced by the prosecution, neither were eye-witnesses of the occurrence, nor in their presence, the deceased, then injured had made statement to the Police or Doctor---Husband of the deceased, who was alleged to be the eye-witness of the occurrence, being an important witness of the prosecution, was abandoned by the prosecution without assigning any reasons---Act of withholding of most natural and a material witness of occurrence, would create an impression that said witness, if produced, might not have supported the prosecution---Withholding of said witness had made case of prosecution further doubtful---Evidence available on record, was not of such a character, which could be relied upon to convict accused on a capital charge---As the prosecution had failed to prove the guilt against accused beyond any shadow of doubt, while extending the benefit of doubt, conviction and sentence of accused by the Trial Court, were set aside---Accused was acquitted of the charges levelled against him and he was set free, in circumstances.

Tahir Khan v. The State 2011 SCMR 646; Muhammad Rafique and others v. The State 2010 SCMR 385 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---For giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts, but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit, not as a matter of grace and concession, but as a matter of right---Conviction of accused, must be based on unimpeachable evidence and certainty of guilt; and any doubt arising in the prosecution case, must be resolved in favour of accused.

Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Said Tahar Khan for Appellant.

Muhammad Javed Khan, D.A.-G. for Respondents.

Date of hearing: 12th June, 2013.

2014 P Cr. L J 732

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

FAHEEM---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.338-P of 2013, decided on 28th November, 2013.

(a) Explosive Substances Act (XI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---No eye-witness was available and the case of prosecution rested entirely on circumstantial evidence---Confessional statement made by accused was exculpatory in nature, as neither it contained any admission nor confession; and had remained uncorroborated---Trial Court should not have accepted the same as a weak type of evidence---Evidence of C.C. TV recording, was neither clear nor compelling, rather was shrouded in mystery as to how the law-enforcing agencies had reached to accused through the same---Not a single circumstance had been proved by the prosecution wherefrom inference regarding guilt of accused could be drawn, as the evidence fell far short of the prescribed standards---Prosecution version, was not in consonance with the statements of prosecution witnesses---Trial Court was not justified to ignore the material discrepancies and infirmities in the prosecution evidence---Conviction and sentence of accused persons, were set aside and they were acquitted of the charges levelled against them and were set at liberty, in circumstances.

(b) Criminal trial---

----Evidence---Circumstantial evidence---Conviction could be based on circumstantial evidence, provided the circumstances from which the conclusion was drawn, were cogent, reliable, fully established, and were pointing towards the guilt of accused.

Muhammad Hussain v. The State 2011 SCMR 1127 rel.

Ms. Abida Safdar for Appellant.

Mujahid Ali Khan, D.A.-G. for the State.

Date of hearing: 28th November, 2013.

2014 P Cr. L J 796

[Peshawar]

Before Qaiser Rashid Khan and Ikramullah Khan, JJ

MUHAMMAD HAYAT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.335-P of 2012, decided on 26th March, 2013.

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

----S. 9(b)--- Possession of narcotics--- Appreciation of evidence---Allegations against the accused were that he was possessing 950 grams of charas---Statements of the complainant and Investigating Officer did not show as to who took the contraband and accused to Police Station and that fact remained shrouded in mystery and such mysterious type of arrest and recovery of narcotics made the case of prosecution doubtful---When Investigating Officer arrived at the spot, the complainant was present there for pointation of the same, and as to why the accused and contraband were not handed over to the Investigating Officer and also the sample separated from the whole bulk of narcotics coupled with silence of both the important and material witnesses on such two facts created serious doubts that the occurrence had not taken place as narrated by the prosecution nor the investigation was free from reasonable doubt---Amendment in section of law from Arts.3 & 4, Prohibition (Enforcement of Hadd) Order, 1979 to S.9, Control of Narcotic Substances Act, 1997, made the prosecution case weak on legal side because instead of an officer with the rank of Sub-Inspector, the F.I.R., arrest and then investigation was conducted by an Assistant Sub-Inspector against the mandatory provision of law under Control of Narcotic Substances Act, 1997---Prosecution had not proved its case beyond reasonable doubt---Appeal was accepted and conviction and sentence of the accused-petitioner were set aside and he was acquitted from the charges.

Muhammad Ayaz for Appellant.

Malik M. Rehan Awan for the State.

Date of hearing: 26th March, 2013.

2014 P Cr. L J 809

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SHADU---Appellant

Versus

MUHAMMAD SALIM and another---Respondents

Criminal Appeal No.176 of 2010, decided on 25th September, 2013.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appeal against acquittal---Complainant had reported in F.I.R. that two co-accused armed with Kalashnikov, entered the shop and opened fire at his son and that his son went inside the shop to purchase some stuff, while he (complainant) remained outside the shop---Complainant, while appearing as prosecution witness, had negated his said versions of F.I.R., by deposing that all three accused persons, including main accused, having 7.62 bore rifles, opened fire on his deceased son---Complainant had also negated his earlier version stating that he and his son had gone together in the shop---Complainant admitted in cross-examination that he had not seen accused at the time of firing at the deceased and injured---Complainant was unable to explain as to how many shots were made by each of accused---Shopkeeper in whose shop occurrence took place and alleged eye-witnesses were not examined by the prosecution---Statements recorded by the complainant and injured prosecution witnesses, were contradictory to each other, as well as contrary to the initial report made by the complainant---Injured witnesses had also given altogether different story to the ocular account advanced by the complainant---Mere fact that injured shown as eye-witnesses by the prosecution, having sustained injuries during the occurrence would not ipso facto be taken as sufficient evidence to the effect that they had spoken the whole truth---Site plan, was prepared on the pointation of complainant and two eye-witnesses, but said witnesses had not been examined by the prosecution---Points shown in the site plan, were contradictory to the statements made by the prosecution witnesses---Trial Court had properly evaluated the evidence---Acquittal of accused did not suffer from any illegality---Complainant/appellant could not point out any gross misreading of evidence, which could be termed as miscarriage of justice---Appeal against acquittal was dismissed.

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

----S. 417(2-A)---Appeal against acquittal---Appraisal of evidence---Scope---Appraisal of evidence in appeal against acquittal, could not be made rigidly, and in the manner of appreciation of evidence in appeal against conviction, as in case of acquittal, court had already appraised the evidence after proper analysis of record---In case of acquittal, the scope was considerably narrow.

Saifur Rahman Khan for Appellant.

Aamir Farid Sadozai for Respondent No.1.

A.A.-G. for the State.

Date of hearing: 25th September, 2013.

2014 P Cr. L J 835

[Peshawar]

Before Abdul Latif Khan, J

NAEEM KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.605-A of 2013, decided on 14th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 22---Manufacturing, owning or possessing intoxicant---Issuance of search warrant---Bail, grant of---Further inquiry---Despite prior spy information of the presence of the locally made liquor in the house of accused, mandatory provision of S.22 of Prohibition (Enforcement of Hadd) Order, 1979, dealing with issuance of search warrant, was not complied with by the complainant/S.H.O. before raiding the premises---Ingredients for applicability of Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, were lacking; and the Trial Court had to determine that aspect of the case after recording evidence of the prosecution---Tentative assessment of the facts on record, showed that a case of mere possession, punishable under Art.4 of the Order, which did not fall within the prohibition contained in S.497, Cr.P.C., as the punishment provided thereof in the statute was only one year---Investigation in the case was complete and accused was no more required for further investigation---Case of further inquiry was made out in favour of accused, as envisaged under subsection (2) of S. 497, Cr.P.C.--- Accused was granted bail, in circumstances.

2010 YLR 2683; 1996 PCr.LJ 1787; Muhammad Hashim v. The State 1995 PCr.LJ 1594; 2010 YLR 1101; 1999 PCr.LJ 924 and Khalid Mehmood's case 1997 PCr.LJ 736 ref.

Khalid Mehmood's case 1997 PCr.LJ 736 and Muhammad Hashim v. The State 1995 PCr.LJ 1594 rel.

Abdul Saboor Khan for Petitioner.

Raja Muhammad Zubair, D.A.-G. for the State.

Date of hearing: 14th October, 2013.

2014 P Cr. L J 849

[Peshawar]

Before Malik Manzoor Hussain, J

AMEER and 19 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.63-P of 2014 in Criminal Appeal No.91-P of 2014, decided on 21st February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Foreigners Act (XXXI of 1946), S.14(2)---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Contravention of provision of Foreigners Act, 1946, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Suspension of sentence---Sentence awarded to accused persons was less than two years---Propriety demanded that till disposal of main appeal, sentence awarded to accused persons should be suspended---Accused persons had already undergone six months, and there was no possibility of fixing of main appeal in near future---Accused were released on bail bonds, with the direction to appear on each and every date of hearing of main appeal.

Arshad Hussain Yousafzai for Petitioners.

2014 P Cr. L J 858

[Peshawar]

Before Lal Jan Khattak, J

GHULAM ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 11-D of 2013, decided on 29th November, 2013.

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

----S. 7--- Penal Code (XLV of 1860), S. 302--- Qatl-e-amd---Determination of age of accused---Trial Court in view of available record, passed order that accused who appeared to be juvenile, his case would be proceeded under Juvenile Justice System Ordinance, 2000---Validity---Entry of date of birth of accused, was supported by extract from the register pertaining to school record of accused and "Form Bay" from NADRA---Both said documents which pertained to issue of age of accused, having come from official custody, and being much prior in time than the registration of the criminal case against accused; no finger could be pointed out to term the same as fabricated or procured one in order to avail the benefits of juvenility---No reason was found to doubt said documents---Ossification test of an accused about determination of his age, would be necessary and relevant only when no authentic and reliable documentary evidence was available about his age---In presence of accurate documentary evidence regarding the age of accused, there would be no necessity to refer him for his ossification test etc.---Order of the Trial Court to proceed with the case of accused under the Juvenile Justice System Ordinance, 2000, did not suffer from any illegality or infirmity---Same was upheld and criminal revision was dismissed.

Saif-ur-Rehman Khan for Petitioner.

Sanaullah Khan Shamim, A.A.-G. for the State.

Muhammad Ismail Khan Alizai for Accused/Respondent.

Date of hearing: 29th November, 2013.

2014 P Cr. L J 882

[Peshawar]

Before Khalid Mehmood Khan and Shah Jehan Khan Akhundzada, JJ

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

FAROOQ---Respondent

Criminal Appeal No.292-P of 2012, decided on 17th January, 2013.

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

----S. 9--- Criminal Procedure Code (V of 1898), S. 417(2-A)---Possessing and trafficking narcotic---Appeal against acquittal---Reappraisal of evidence---Two star witnesses in the case, during their statements, and especially in their cross-examination, had totally contradicted to each other on material points---No plausible explanation of sending of contraband to Forensic Science Laboratory after the delay of about twelve days had been given---Accused was not history-sheeter and was not convicted before in similar cases---Prosecution had failed to bring home charge against accused to connect him with the commission of offence---Trial Court after taking stock of the entire material on record, arrived at the conclusion that prosecution had not been able to establish its case against accused beyond any reasonable shadow of doubt---Judgment recording acquittal, could not be held to be arbitrary or whimsical---No useful purpose would be achieved, if impugned judgment of the court below was set at naught, and case was remanded for trial de novo, because the possibility of conviction of accused was remote; and re-trial would result in futile exercise.

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

----S. 417(2-A)---Appeal against acquittal---Principles---Acquittal of accused, would carry double presumption of innocence; one at initial stage till found guilty, and second being that the Trial Court had confirmed the presumption of innocence by recording acquittal---Superior courts, would not interfere with the order of acquittal passed after proper appreciation of evidence, even if a different view of the evidence could be possible; unless same was not supported by evidence on record; or was shown to have been caused gross miscarriage of justice, or was perverse, or the reasons given for acquittal were wholly artificial, shocking and ridiculous---Even a single doubt, if found reasonable, was sufficient to warrant acquittal of an accused---Appeal was dismissed.

Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Fayyaz Akhtar v. State 1993 SCMR 828 and Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 rel.

Muhammad Rafique Mohmand, D.A.-G. for the State-Appellant.

2014 P Cr. L J 911

[Peshawar]

Before Dost Muhammad Khan, C.J. and Musarrat Hilali, J

IMTIAZ---Appellant

Versus

The STATE through Advocate-General and another---Respondents

Criminal Appeal No.544-P of 2012, decided on 20th November, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Sentence, reduction in---Mitigating circumstances---Guilt of accused was proved beyond reasonable doubt, and it was established that incident had taken place on the spur of the moment without any motive or premeditation---Deceased was not an intended victim of accused, as he was hit only when he intercepted accused who was enraged in anger---Act was committed in the heat of moment without an intention or motive to kill the deceased---Sentence recorded by the Trial Court through the impugned judgment was altered as there existed mitigating circumstances---Conviction of accused under S.302(b), P.P.C. was maintained, but in view of peculiar circumstances, sentence was reduced to life imprisonment from death with benefit of S.382-B, Cr.P.C.---Accused was ordered to pay Rs.6,00,000 as compensation to the legal heirs of the deceased.

Barrister M. Zahoor-ul-Haq for Appellant.

Arshad Ahmad Khan, D.A.-G. for the State.

Ishtiaq Ibrahim for the Complainant.

Date of hearing: 20th November, 2013.

2014 P Cr. L J 947

[Peshawar]

Before Syed Afsar Shah, J

ABIDULLAH KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.144-B of 2013, decided on 9th September, 2013.

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, grant of---Case of cross-version F.I.Rs. lodged for the same occurrence---Complainant lodged present F.I.R. about 30 minutes after the occurrence---Accused lodged his cross F.I.R. against complainant party on the same date, place and almost the same time, meaning thereby that there were counter versions between the parties, and in the attending circumstances of the case it was yet to be determined as to who was the aggressor and who was aggressed upon---Accused was admitted to bail in such circumstances.

Abdul Hameed v. Zahid Hussain and others 2011 SCMR 606 and Muhammad Shahzad Saddique v. The State and another PLD 2009 SC 58 rel.

Muhammad Farooq Khan Sokari and Shahzad Khan for Petitioner.

Qudratullah Khan, D.A.-G. for the State.

Muhammad Rashid Khan Dirma Khel for the Complainant.

Date of hearing: 9th September, 2013.

2014 P Cr. L J 961

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD SALEEM and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 16-D, 3-D of 2012 and Murder Reference No.20-D, decided on 18th December, 2013.

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

----Ss. 302, 324, 337-F(iii) & 427---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mutalahimah, mischief, possessing unlicensed arms---Appreciation of evidence---Complainant had not named anyone as eye-witness in the F.I.R. nor anyone in the statement in court---Presence of prosecution witness on the spot, was not shown by the complainant; two eye-witnesses, allegedly present on crime venue, had contradicted each other---Occurrence had taken place at 7-45 p.m. in the night, but F.I.R. was silent about light or electric bulb---Prosecution witness had not disclosed the reason of his presence on the spot---Allegation of indiscriminate firing had been levelled, but no mark of firing on any conspicuous place had been shown---No circumstantial evidence existed, which could corroborate the ocular account furnished by the prosecution witnesses---No recovery of crime empty had been effected from the crime site by the Investigating Officer---Investigating Officer had admitted in cross-examination that no specific mark was shown in site plan, wherefrom empties of .30 bore and .9 mm were recovered---Site plan had contradicted the ocular account---Joint recovery of separate pistols made at the instance of accused and co-accused, from a locked house, on the next day of arrest of accused, was highly doubtful---Accused was not charged for firing at any of the victim---None from the locality had been examined by the Investigating Officer---Medical evidence was not in line with prosecution version---No witness of recovery was cited from the vicinity/place of recovery---Impugned judgment of the Trial Court, was set aside, accused was acquitted of the charge levelled against him; he being on bail, was discharged from the liability under the bail bond.

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

----S. 417(2-A)---Appeal against acquittal---Criteria and scope---Criteria laid down for treating appeal against acquittal was different from that of appeal against conviction---Presumption of innocence of accused would become double in case of acquittal.

(c) Criminal trial---

----Administration of justice---Findings of the Trial Court, were not open to exception, unless had obstinately blundered or reached to such distorted conclusion as to produce a positive miscarriage of justice.

Ghulam Hur Khan Baloch for Appellants.

Sanaullah Shamim, A.A.-G. for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 18th December, 2013.

2014 P Cr. L J 989

[Peshawar]

Before Mrs. Irshad Qaiser, J

AMEER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.92 of 2012, decided on 4th October, 2012.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 33---Application for superdari, grant of---Transporting the narcotics---Contention of the applicant was that accused was his driver and he had no knowledge that his car was being used for transportation of narcotics---Application for superdari was dismissed by the Trial Court and accused was convicted and vehicle was confiscated---Trial Court was bound to look for the mens rea on the part of applicant or any contribution made by him---Record was silent as to whether any query or probe was made by raiding party or Investigation Officer to trace out that applicant had any knowledge of transporting the narcotics---Provisions of Ss. 32 & 33 of the Control of Narcotic Substances Act, 1997 was beneficial enactment to safeguard the right of innocent owner---To penalize a person in absence of mens rea would be unjust and confiscation of the vehicle would be harsh---Impugned judgment in respect of confiscation of car (only) was set aside and case was remanded to the Trial Court with the direction to dispose of the application after proper appreciation of evidence.

2002 PCr.LJ 97 rel.

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

----Ss. 32 & 33---Articles connected with narcotics, confiscation of---Procedure--- Scope--- Whenever an offence had been committed under the Control of Narcotic Substances Act, 1997, the intoxicant, utensils etc in respect or by means of which the offence had been committed should be liable to confiscation along with receptacles or packages and vehicle, vessel or other conveyance used to carry the same.

(c) Criminal trial---

----Offence---Criteria---Mens rea---To administer criminal justice the most important criteria or essence of every offence i.e. mens rea or guilty mind had to be considered---No crime or offence was completed unless the commission of the same was coupled with the necessary ingredients of mens rea or guilty mind.

Malik Amjid Inayat for Appellant.

Muhammad Rafique Mohmand, A.A.-G. for the State.

Date of hearing: 4th October, 2012.

2014 P Cr. L J 1023

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

MEHMOOD KHAN---Appellant

Versus

SAADULLAH and 3 others---Respondents

Criminal A. No. 10-B of 2008, decided on 11th March, 2013.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Qatl-e-amd and common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Deceased received single firearm entry wound---Investigation Officer did not observe any bullet marks---Investigation Officer recovered two empties and Kalashnikov---Report of firearm expert showed that both the empties had been fired by one and the same Kalashnikov---One accused was charged for Lalkara and two had been charged for indiscriminate firing---Recovery from the spot, firearm expert report, injury and medical evidence suggested that same was the job of one person---Complainant and deceased were at the same position but father was hit, while son was kept free---Story alleged by the prosecution did not appeal---Statement of the complainant was not confidence inspiring---Occurrence allegedly had taken place at mid night over the roof top of the house of the accused---Presence of deceased at such odd hours of night on roof top was not free of doubt---Visibility of deceased on the roof top from courtyard , non recovery of blood from ladder or roof, presence of son/complainant with father, delay in lodging F.I.R. led to the conclusion that occurrence had not taken place in the manner as narrated by the complainant---Prosecution had failed to prove recovery of Kalashnikov---Recovery witnesses were also not produced---Inference could be drawn that had he appeared before the court, he would have not supported the alleged recoveries---Motive remained unproved--- Prosecution was bound to prove its case beyond any shadow of doubt--- If any reasonable doubt arose, the benefit of the same must be extended to the accused---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by an accused---Court sitting in appeal against acquittal remained slow in reversing the judgment of acquittal unless it was found to be arbitrary, fanciful and capricious on the face of it or was the result of misreading or non - reading of material evidence---Appeal was dismissed.

Iltaf Hussain v. The State 1996 SCMR 167; Muhammad Mansha Kousar v. Muhammad Asghar and others 2003 SCMR 477; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 rel.

Salimullah Khan Ranazai for Appellant.

Muhammad Rasheed Khan Dirmakhel for Respondents.

Ahmad Farooq Khattak, A.A.-G. for the State.

Date of hearing: 11th March, 2013.

2014 P Cr. L J 1036

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

MEHRUBAN SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.566-P of 2012, decided on 24th September, 2013.

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

----S. 7(FF)---Explosive Substances Act (VI of 1908), Ss.3 & 4---Criminal Procedure Code (V of 1898), S.164---Act of terrorism, causing explosive or making or keeping explosive---Appreciation of evidence---Confession---Promptitude with which the confessional statement was recorded, depicted volunteerness; and had eliminated the possibility of use of coercion or inducement---All the necessary formalities as enumerated in S.164, Cr.P.C., were duly complied with prior to recording statement of accused under S.164, Cr.P.C.---Confessional statement of accused was not the result of maltreatment and coercive measures---Accused, while being examined under S.342, Cr.P.C., gave affirmative answer to the question of confession---When accused would retract or resile from confession, onus would lie on him, to prove that he did not record any confession---Conviction could be based on the sole confessional statement, provided same was voluntary; and true and there was no basic difference between the confession already recorded or the retracted confession, if the element of truth was not missing---Occurrence in the present case was result of the reason as stated by accused in his confessional statement---Such like cases should be dealt with iron hands and no leniency should be shown to a heinous crime---Schools were blown-up and the Government property was damaged by miscreants---Life of the inhabitants of the area, had become miserable due to the activities of which accused had been involved---Such terrorist activities had created a sense of fear in society---Prosecution had proved its case against accused beyond shadow of doubt---Conviction of accused was maintained and his appeal was dismissed, in circumstances.

State through AG, N.-W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950 rel.

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

----Ss. 164 & 364--- Judicial confession--- Admissibility---Notwithstanding the procedural defect in the confessional statement, a judicial confession, if it was found true, voluntary and confidence inspiring, could safely be made basis for conviction---Provisions of Ss.164 & 364, Cr.P.C., would apply to all sorts of statements and confessional statement recorded under S.164, Cr.P.C.---Missing of the seal of the Court which recorded confession and caused no prejudice or injustice to accused, would not vitiate the admissibility of the confessional statement.

Nazir alias Wazir v. The State PLD 2007 SC 2002 rel.

Sahib Zada Riaz-ul-Haq for Appellant.

Gul Daraz Khan for the State.

Date of hearing: 24th September, 2013.

2014 P Cr. L J 1060

[Peshawar]

Before Syed Afsar Shah, J

MUHAMMAD IQBAL KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.22-B of 2014, decided on 17th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Penal Code (XLV of 1860), Ss. 420 & 489-F---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque---Bail, grant of---Bailable offence---Offences not falling within prohibitory clause of S. 497(1), Cr.P.C.---Accused allegedly handed over a cheque to the complainant, which got dishonoured on presentation due to insufficient funds in the account---Section 420, P.P.C. was a bailable offence---Section 489-F, P.P.C. provided a maximum punishment of three years, thus it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was behind bars for the last one month---Investigation in the case was complete---Case was ready for trial and as such accused was no more required by police for further investigation---Accused was admitted to bail in circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

Muhammad Rasheed Khan Dirma Khel for Petitioner.

Saif ur Rehman Khattak, A.A.-G. for the State.

Javed Khan Wazir for the Complainant.

Date of hearing: 17th February, 2014.

2014 P Cr. L J 1100

[Peshawar]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

JAVED KHAN---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and another---Respondents

Writ Petition No.1652-P of 2013, decided on 6th August, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18(g) & 24(b)---Criminal Procedure Code (V of 1898), Ss.169, 170, 173 & 344--- Constitution of Pakistan, Arts.10-A & 199---Constitutional petition---Bail, grant of---Delay in filing reference---Judicial remand, extension in---Fair trial---Accused sought bail on the plea of considerable delay in filing of reference---Validity---Provisions contained under Ss.169 & 170, Cr.P.C. had not been specifically ousted nor inconsistent with any provision of National Accountability Ordinance, 1999---NAB authorities were bound to give effect to the provisions contained under Ss. 169 & 170, Cr.P.C. in their true spirit to take cognizance of the matter as well as to provide opportunity to accused to defend himself properly in that regard---Unexplained delay in filing of reference against accused was not fair and just to keep a person behind the bars, nor remand of accused after every 15 days to judicial lockup without plausible explanation in that regard could be termed as fair and just, which was a Constitutional right of a detenu/accused being enshrined under Art.10-A of the Constitution---Under the provisions of S.170, Cr.P.C. or S.18(g) of National Accountability Ordinance, 1999, availability of sufficient material against accused was sine qua non for filing either complaint under S.173, Cr.P.C. or a reference under S. 24(b) of National Accountability Ordinance, 1999, for the purpose to prosecute accused before competent Court of law for commission of any offence levelled thereof against accused person---Bail was allowed in circumstances.

Zahoor Ahmad Sheikh v. Chairman NAB PLD 2007 Kar. 267; Anwar ul Haq Qureshi v. National Accountability Bureau and another 2008 SCMR 1135; Abdul Qadir v. Federation of Pakistan and others 2002 SCMR 1478 and Dr. Allah Nawaz A. Qazi v. State through Chairman NAB 2008 SCMR 196 ref.

Aminur Rehman for Petitioner.

Muhammad Jamil Khan for NAB with D.P.-G. for the NAB.

Date of hearing: 6th August, 2013.

2014 P Cr. L J 1118

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SHER DAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.42-D and Criminal Revision No.15-D of 2012, decided on 24th September, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was directly charged in promptly made report---Presence of the deceased, accused, complainant and eye-witnesses, as shown on the points mentioned in the site plan, was duly supported by the evidence produced by the prosecution---Accused neither examined him as his own witness under S.340(2), Cr.P.C. nor produced any evidence in support of his defence; and simply had denied the occurrence in his statement---Recovery of the blood-stained earth, empty shell of 7.62 bore from the spot was supported by evidence---Kalashnikov recovered from accused, was sent to the Forensic Science Laboratory, report of which was positive---Story narrated by the prosecution was fully corroborated by the evidence on record---Alleged discrepancies in the statement of the prosecution witnesses, which were minor in nature, would not benefit accused, particularly in a case where tangible evidence was available against accused---Medical evidence with regard to fire-arm injuries, were in line with the prosecution case and fully supported the ocular version---Site plan and recoveries also supported the version of prosecution---Accused who was directly charged in the F.I.R. in daylight occurrence, decamped from the spot and remained fugitive from law for about more than 10 years, for which no explanation had been made by accused---Parties were known to each other as accused belonged to the same village to which complainant belonged---No chance of substitution existed as single accused had been charged in the case---Story of the prosecution had been made in natural manner without any addition or deletion---Evidence of tangible nature produced by the prosecution successfully brought home the guilt of accused, supported by all aspect of the case, necessary for conviction of accused---Trial Court had evaluated the evidence properly and had sentenced accused in accordance with law to which no exception could be made---Conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances---Trial Court, which was proper forum to decide the quantum of sentence, had given sufficient ground in the impugned judgment for awarding lesser punishment, which could not be differed.

Saleemullah Khan Ranazai for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Muhammad Ismail Alizai for the Complainant.

Date of hearing: 24th September, 2013.

2014 P Cr. L J 1137

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

Haji ABDUR RAZAAQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.28-D and Criminal Revision No.8 of 2013, decided on 7th November, 2013.

Penal Code (XLV of 1860)---

----Ss. 376 & 496---Rape and adultery---Appreciation of evidence---Benefit of doubt---Complainant alleged that accused abducted his daughter-in-law on motorcycle and raped her---Trial Court convicted the accused and sentenced him to imprisonment for fourteen years---Validity---Motorcycle on which accused and abductee were allegedly riding at the time when accused was arrested, was recovered from residential room of co-accused a day after the arrest of accused---Recovery of motorcycle from the house of co-accused and that too on the subsequent day of arrest of accused brought prosecution case under heavy doubts---Prosecution did not prove its case against accused beyond any shadow of doubt and it was full improbabilities, benefit of which must go to accused---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Sanaullah Khan Gandapur and Burhan Latif Khaisori for Appellant.

Sanaullah Khan Shamim, A.A.-G. for the State.

Haji Muhammad Shakil for the Complainant.

Date of hearing: 7th November, 2013.

2014 P Cr. L J 1173

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

FAZAL AMIN---Appellant

Versus

The STATE and another---Respondents

Jail Criminal Appeal No.108-P of 2011, decided on 12th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Brother of the deceased, was the only eye-witness of the occurrence---Conviction, though could be recorded on accused, on the strength of a singular eye-version account, but the evidence furnished by a sole eye-witness must be confidence inspiring; worth, reliable and appealable to a prudent mind---Such evidence, must be corroborated by other circumstantial evidence---If any of the said elements was short, then the testimony of a sole eye-witness, could not be made as base for recording conviction---Post-occurrence attitude, behaviour and role of the complainant, in the present case, had shown that he was not present on the spot at the time of occurrence---Complainant, neither took the victim to any hospital, or to the Police Station, nor he brought the dead body to his house---Such behaviour of the complainant, was sufficient to believe that he was not present on the spot, when the occurrence had taken place---Sole testimony of the complainant could not be relied upon, in circumstances---Impugned judgment passed by the Trial Court, was set aside, and accused was acquitted of the charge levelled against him and he was released, in circumstances.

Qazi Farid Ahmad for Appellant.

Rafiq Ahmad, Deputy Advocate-General for the State.

Date of hearing: 12th March, 2014.

2014 P Cr. L J 1207

[Peshawar]

Before Mrs. Irshad Qaiser, J

Mst. PARVEEN---Appellant

Versus

BAKHSHEESH and others---Respondents

Criminal Appeal No.27-A of 2008, decided on 23rd December, 2013.

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

----S. 417(2-A)---Penal Code (XLV of 1860), S.337-F(v)---Causing Hashimah---Appeal against acquittal---Maintainability---Legal heirs of victim including widow---Locus standi to file appeal against acquittal---Scope---Victim at the time of passing the order of acquittal, was alive, but during his life time he had not filed any appeal, and after his death his widow had filed said appeal---Acquittal could be challenged by State, complainant or any aggrieved person---Legal heirs of deceased victim, including his widow had no right to file appeal against the acquittal of accused.

Muhammad Shafi v. Muhammad Asghar PLD 2004 SC 875 rel.

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

----Ss. 417(2-A) & 410---"Appeal against acquittal" and "appeal against conviction"---Scope---Approach of court for dealing with the "appeal against acquittal", would be different and should be distinguished from "appeal against conviction", because presumption of double innocence of accused was attached to the order of acquittal---Appellate Court could interfere in the finding of acquittal, if the finding and reasons were of speculative or artificial in nature, or based on no evidence, or misrepresentation of evidence; or the conclusion drawn as to guilt or innocence, was perverse resulting in to miscarriage of justice.

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

----S. 337-F(v)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Causing Hashimah---Appeal against acquittal---Appreciation of evidence---Out of three persons charged in the case, two had been acquitted during trial, while the third was fined Rs.10,000 as Daman---Unexplained delay of six hours in lodging report---Nothing was recovered from the possession of accused---Appellate Court had pointed out the contradictions and discrepancies in the statement of prosecution witnesses and had given detailed reasons for acquittal of accused---Prosecution had not been able to point out any illegality, irregularity as well non-reading and misreading of evidence of the Appellate Court---Appeal against acquittal was dismissed in circumstances.

M.A. Tahir Kheli for Appellant.

Respondent in person along with his Counsel.

A.A.-G. for the State.

Date of hearing: 23rd December, 2013.

2014 P Cr. L J 1246

[Peshawar]

Before Malik Manzoor Hussain, J

SANAM ZEB and another---Appellants

Versus

SHAH NAWAZ and 2 others---Respondents

Criminal Appeal No.160-P of 2013, decided on 12th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Attempt to commit qatl-e-amd, rioting, common object---Appeal against acquittal---Appreciation of evidence---Statement of complainant and prosecution witness, were totally contradictory to each other---Injuries sustained by both the appellants, were single one, which were declared simple; and on non-vital part of the body---F.I.R. was lodged with a considerable delay---Material dishonest improvements were made in the statements of the appellants---Presence of acquitted accused, was missing, while another person was shown present in the site plan---Indiscriminate firing was mentioned in the F.I.R. but no crime empty was found from the spot---No blood was found at the place where presence of injured was shown---Prosecution case was full of doubts, and being not confidence-inspiring, evidence produced was not sufficient for conviction---Standards for assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction---Rigid method of appraisal of evidence, was not to be applied in appeal against acquittal---When an accused was acquitted from the charge, then double presumption of innocence was acquired by him; and Appellate Court would not interfere, unless the acquittal judgment was arbitrary, capricious, fanciful and against record---Prosecution having failed to prove the charge against acquitted accused beyond reasonable shadow of doubt, impugned judgment not requiring any interference and appeal being devoid of merits, was dismissed, in circumstances.

Muhammad Zahir v. The State 2013 YLR 1483; The State v. Faqir Muhammad Khan 2005 PCr.LJ 536 and Muhammad Aslam v. Sabir Hussain 2009 SCMR 985 rel.

Muhammad Inam Khan Yousafzai for Appellants.

2014 P Cr. L J 1262

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilali, JJ

SALIM RIAZ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.453-P of 2012, decided on 23rd May, 2013.

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

----S. 27---Defective investigation---Appreciation of evidence---Accused, who was Investigating Officer in a criminal case, was convicted and sentenced by the Anti-Terrorism Court for his defective investigation which constituted offence under S.27 of Anti-Terrorism Act, 1997---Court in its impugned judgment had observed that accused had committed certain lapses, and when those lapses were pointed out to accused, he was unable to properly answer the same---Validity---Lapses in the investigation so referred by the Trial Court, could not be attributed to accused alone---Record of the case was silent with regard to the fact that lapses referred to, were the result of bad faith, or for any extraneous consideration---Nothing was available to the effect that accused being Investigating Officer, had acted intentionally and improperly, without due diligence; and had acted in breach of his duties---All the details had been given by the accused in statement before the court--- Reply given and the statement of accused along with all the documents, had not been considered and appreciated by the court, and findings of court appeared to be presumptive---Charge against accused, in circumstances, had become doubtful---Accused could not be convicted and sentenced, in circumstances.

Muhammad Sharif Shar v. The State 2000 PCr.LJ 1882 and Gohar Ali v. The State 2002 YLR 432 rel.

Abdul Latif Afridi, Shahab Khattak and Sajeed Khan for Appellant.

Zakir Hayat Khan for the State.

Date of hearing: 23rd May, 2013.

2014 P Cr. L J 1289

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

ABDUL HAMEED---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.264 of 2013, decided on 8th April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)---Possession of narcotic---Bail, refusal of---Narcotic hidden in a vehicle---Packets of charas weighing 14 kilograms in total were allegedly recovered by the police from beneath the front seat of the driver, and from beneath the front and rear seats of the vehicle---Accused was driving the vehicle in question at the relevant time---Quantity of charas recovered was huge (i.e. 14 kilograms)---Case of prosecution was duly supported by statements of police officials, who were eye-witnesses of the occurrence and had no mala fide or ill-will to implicate the accused--- Report of Forensic Science Laboratory was in positive---Offence alleged entailed capital punishment and fell within the restrictive clause of S. 497, Cr.P.C., and also attracted the embargo contained in S. 51(1) of Control of Narcotic Substances Act, 1997---Bail petition of accused was dismissed in circumstances.

Noor Alam Khan for Petitioner.

Mehr Gul for the State.

Date of hearing: 8th April, 2013.

2014 P Cr. L J 1318

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

NIAMAT KHAN and 2 others---Petitioners

Versus

SIFAT ALI and 3 others---Respondents

Criminal Miscellaneous Quashment Petitions Nos.154-P and 35 of 2012, decided on 23rd May, 2013.

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

----S. 154---Information in cognizable cases---Scope---Mandate of S.154, Cr.P.C. was that once a cognizable offence took place and its information, if given orally to an officer incharge of a Police Station, would be reduced to writing by him, or under his direction, which he would read over to the informant; and every such information, whether given in writing or reduced into writing, would be signed by the person giving it; and the submission thereof would be entered in a book to be kept by such officer in such form as the Provincial Government could prescribe in that behalf.

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

----Ss. 22-A, 154 & 169---Application under S.22-A, Cr.P.C. to the Justice of Peace praying for registration of F.I.R. against petitioners/accused persons---Application had revealed the commission of cognizable offence---S.H.O. concerned, in spite of clear-cut directions of the Justice of Peace, did not register the case, which amounted to disobedience of the order of the Justice of Peace---High Court ordered the S.H.O. to register the case as per impugned order forthwith and A.I.-G. Investigation and DPO, were directed to take disciplinary action against concerned S.H.O. for disobedience of order of Justice of Peace.

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

----Ss. 154, 169, 249-A & 265-K---Registration of F.I.R.---Purpose---Purpose of the registration of F.I.R., was not meant to hold a person guilty of an offence, but to set the law in motion for the process of investigation; and if at any stage during inquiry or trial, it was found that case was false or could not be made out against accused, then discharge the accused under S.169, Cr.P.C.; or his acquittal could be ordered under S.249-A or 265-K, Cr.P.C.

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

----S. 561-A---Quashing of order---Petition for---Jurisdiction of High Court---Scope---While exercising powers under S.561-A, Cr.P.C., the High Court must maintain great care and caution, so that it could not result into miscarriage of justice---Allegation of the complainant in the present case, in application under S.22-A, Cr.P.C. before the Justice of Peace, per se, constituted a cognizable offence---Application, in circumstances, was rightly accepted by Justice of Peace through the impugned order for the registration of F.I.R.---Such order was unexceptionable, and warranted no interference by High Court in exercise of its inherent power under S.561-A, Cr.P.C.

Shakil Khan Gilani for Petitioners.

Azhar Ali for Respondents.

Muhammad Shifique Khan for the State.

Date of hearing: 23rd May, 2013.

2014 P Cr. L J 1333

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

IRFAN ALI---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.61-P of 2013, decided on 19th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Superdari of vehicle used in transportation of narcotic---Scope---Police took vehicle in question into possession after 40 kilograms of charas was found from its trunk---Petitioner filed application for superdari of vehicle before Trial Court contending that he was the actual and sole owner of the same, and that there was nothing on record to show that narcotic recovered from vehicle was transported with consent, connivance or complicity of the petitioner---Said application was dismissed by Trial Court---Validity---Record did not show as to from whom petitioner purchased the vehicle in question---Trial of the case had not concluded therefore it could not be said with certainty that petitioner was not in conscious knowledge of recovered contraband---Since vehicle in question was case property of a case involving huge quantity of charas, it had to be exhibited during trial of the case and its custody could not be granted to petitioner on superdari---No material was available on record to show that petitioner was ostensible owner of the vehicle---Trial Court had rightly refused custody of vehicle on superdari to the petitioner---Revision petition was dismissed accordingly.

Asif Nazir Mehr for Petitioner.

2014 P Cr. L J 1355

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. HAKIM JAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.243-A of 2013, decided on 21st April, 2014.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 365-B, 376 & 34---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, common intention---Pre-arrest bail, recalling of---Accused allegedly abducted the complainant/abductee twice, during subsistence of her nikah with her husband---Nikah of complainant with her husband stood proved on record---Accused had not even alleged any mala fide on part of complainant/abductee in seeking pre-arrest bail nor it was mentioned therein as to why he had been involved in the case---Complainant/abductee in her statement had given details of the occurrence and fully implicated the accused in the crime, which was not denied rather plea of second nikah had been taken (by the accused)---Case against accused fell within the barring (prohibitory) provisions of S. 497, Cr.P.C.---Accused had committed heinous crime of moral turpitude, which was also against the Injunctions of Islam and in no case he was entitled to the extraordinary concession of pre-arrest bail---Pre-arrest bail granted to accused was recalled in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 365-B, 376 & 34---Bail, recalling of--- Case of abduction and rape---Delay in lodging of F.I.R.---Relevancy---F.I.R. in such cases were lodged at the risk and cost of family honour and future of the victim---Pre-arrest bail was recalled accordingly despite delay in lodging of F.I.R.

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

----S. 497(5)---Bail, recalling of---Scope---Normally bail granted by court of competent jurisdiction was not interfered with, but if it was found that the same had been granted in violation of the established principles for grant of bail and the law on the subject, the superior courts would not hesitate interference.

Asad Ali Chohan for Petitioner.

Mrs. Naseem Tahirkheli for the State.

Sardar Waqarul Mulk for the State.

Date of hearing: 21st April, 2014.

2014 P Cr. L J 1361

[Peshawar]

Before Rooh-ul-Amin Khan, J

Haji ZERI GUL---Petitioner

Versus

AHMAD JAN KHAN and others---Respondents

Criminal Miscellaneous Quashment Petition No.58-B of 2013, decided on 29th November, 2013.

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

----Ss. 561-A & 154---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Quashing of F.I.R. by High Court in its inherent power under S. 561-A, Cr.P.C.---Scope---Complainant alleged that he had given cash to the accused/petitioner as loan, and in return accused gave a cheque to return the loan, however said cheque was dishonoured due to insufficient funds---Accused alleged that he had already repaid the loan to the complainant in cash vide an Iqrarnama, therefore complainant was bound to return the cheque instead of involving him in a false case---Police registered an F.I.R. against accused under S. 489-F, P.P.C.---Validity---Accused had not denied handing over of cheque to the complainant, and in this way investigating agency had collected sufficient material to constitute an offence under S. 498-F, P.P.C.---Contention of accused that he had already returned the loan to the complainant in cash vide an Iqrarnama could not be given weight in absence of evidence, which was yet to be recorded by Trial Court---Accused did not bring on record anything to establish that he made efforts for return of cheque from complainant or that he approached the concerned bank before presentation of the cheque---Prima facie a case existed against accused in light of direct charge by the complainant supported by material collected during investigation---When a prima facie offence had been found committed, then ordinary course of trial was not to be deflected by resorting to quashment---Quashment petition was dismissed in circumstances.

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

----Ss. 561-A & 154---Quashing of F.I.R. by High Court in its inherent power under S. 561-A, Cr.P.C.---Scope---Inherent power of High Court under S. 561-A, Cr.P.C. could only be invoked in extraordinary circumstances, wherein, no offence was made out even if the allegations made in the F.I.R. were proved at trial; or when there was a case of no evidence at all; or where there was a violation of any law, or where any illegality had been pointed out, causing grave miscarriage of justice---Power under S. 561-A, Cr.P.C. could not be utilized to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute---High Court should be extremely reluctant to interfere in a case where a competent court after examining the evidence adduced before it, came to the view that a prima facie case was disclosed and had framed charge or summoned the accused to appear, unless it could be said that the charge on its face or the evidence, even if believed, did not disclose any offence.

Rana Shahid Ahmad Khan's case 2011 SCMR 1937 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

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

----S. 561-A---Interference in criminal proceedings by High Court in its inherent power under S. 561-A, Cr.P.C.---Prerequisites and scope---In order to seek interference under S. 561-A, Cr.P.C., three conditions had to be fulfilled; firstly, the injustice which came to light was not of a trivial nature; secondly, the injustice was of a clear and palpable character and not of doubtful character, and thirdly, there did not exist any other provision of law by which aggrieved party could have sought relief---Power under S. 561-A, Cr.P.C. was extraordinary in nature, which should be exercised sparingly, carefully and with caution, and only where such exercise was justified by the tests laid down in S. 561-A, Cr.P.C.---Normally, High Court did not exercise its inherent jurisdiction unless there was gross miscarriage of justice and interference seemed to be necessary to prevent abuse of process of court or to secure the ends of justice---Power under S. 561-A, Cr.P.C. should ordinarily not be invoked as an alternate or additional jurisdiction to interrupt or divert the normal course of procedure as laid down in the relevant statute---Power under S. 561-A, Cr.P.C. ought not to be exercised capriciously or arbitrarily but should be exercised ex debito justitiae to do real and substantial justice.

Abdur Rashid Khan (Mina Khel) for Petitioner.

2014 P Cr. L J 1397

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

IQBAL ZADA---Appellant

Versus

The STATE through Additional Advocate-General and 3 others---Respondents

Criminal Appeal No.52 of 2011, decided on 19th March, 2014.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Neither any role had been assigned to accused, nor he was charged by name in the F.I.R.---Even the features of accused had not been given in the F.I.R.---Presence of eye-witnesses on the spot, identification of accused, and his arrest, had not been justified as the prosecution evidence to that effect was not confidence-inspiring---Contradictions and dishonest improvements were noticed in the statements of the complainant and other alleged eye-witness---No identification parade was carried out despite the fact that report was lodged against unknown culprits---Identification test, in circumstances, was very much necessary in order to check the false implication of accused---Identification and involvement of accused, in the commission of offence, was doubtful, in circumstance---Episode narrated by the prosecution regarding the arrest of accused, and identification through the eye-witnesses, did not stand to reason; and whole story of prosecution hinged upon the identification and arrest of accused had crumble down---Contents of F.I.R., statement of the complainant, and prosecution witness, were silent about altercation, and exchange of hot words in between accused and the deceased; but in their court statement they stated that accused and deceased, were abusing each others---Said improvements had badly shaken the veracity of both the alleged eye-witnesses---Occurrence had not taken place in the mode and manner as narrated by the prosecution, as presence of eye-witnesses on the spot at the time of occurrence, identification of accused and his arrest, was highly doubtful---Best evidence available with the prosecution having been withheld, adverse inference could be drawn against the prosecution--- Positive report of Forensic Science Laboratory regarding empty of .30 bore, allegedly recovered from the spot, was of no help to prosecution, because same was recovered 3 days after arrest of accused, and same was received by Forensic Science Laboratory after about 11 days of recovery---No plausible explanation having been advanced for such delay, same had no evidentiary value, and could not be used against accused---Evidence available on record, was not of such a character, which could be relied upon to convict accused on capital charge---Prosecution having failed to prove its case against accused beyond shadow of reasonable doubt, conviction and sentence, recorded against accused by the Trial Court, were set aside, extending him benefit of doubt; he was acquitted of the charge levelled against him, and was set free, in circumstances.

(b) Criminal trial---

----Witness---Improvement in the statement of eye-witness---Effect---If improvement made in the statement of eye-witness to strengthen the prosecution case, was found to be deliberate and dishonest, same would seriously damage his veracity; and no reliance could be placed on the testimony of such a witness.

Farman Ahmad v. Muhammad Inayat 2007 SCMR 1825 rel.

(c) Criminal trial---

----Evidence---Disbelieving a witness---Requirements---For disbelieving a witness, it was not necessary that there should be numerous infirmities---If there was one which would impeach the credibility of the witness, that could make the entire statement doubtful---Want of enmity or interest, was not the sole criteria for acceptance of testimony of a witness; and the real test of the veracity of a witness, was the inherent merit of his own statement---Statement of a witness, must be in consonance with the probabilities fitting in the circumstances of the case, and also inspire confidence in the mind of a reasonable prudent man---If those elements were present, then the statement of the worst enemy of accused could be accepted, and relied upon without corroboration, but if those elements were missing, the statement of a pious man could be rejected.

Muhammad Saleem v. The State 2010 SCMR 374; Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 rel.

Sher Muhammad Khan and Muhammad Raziq for Appellant.

Rafiq Ahmad, D.A.-G. for the State.

Sher Shah for the Complainant.

Date of hearing: 19th March, 2014.

2014 P Cr. L J 1415

[Peshawar]

Before Mrs. Irshad Qaiser, J

Mst. SHAFEEN AKHTAR---Petitioner

Versus

Malik MUMRAIZ and others---Respondents

Criminal M/BCA No. 636-A of 2013, decided on 10th March, 2014.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, cancellation of---Expression "further inquiry"---Scope---Accused persons, prima facie, had shared common intention with co-accused who caused the death of husband and son of the complainant---Accused persons could legitimately be saddled with contructive or vicarious liability for causing double murder; and injuries on the head of the complainant by invoking the relevant provision of S.34, P.P.C.---Accused had been released on bail on the basis of further inquiry, but subsection (2) of S.497, Cr.P.C., dealing with further inquiry had not been properly appreciated by the Trial Court---Expression "further inquiry" was not to be taken lightly, nor it was to be entertained unnecessarily---Accused persons had come to the spot fully determined to take lives of their opponents and were armed with deadly weapons---Complainant had promptly lodged F.I.R. wherein five persons had been charged by name for commission of offence---Impugned order (granting bail) was patently illegal, factually incorrect and perverse, which had resulted in miscarriage of justice---Order, whereby accused were granted bail, was set aside, and bail granted to accused persons, was cancelled, in circumstances.

Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Khamiso and another v. The State 1999 PCr.LJ 9; Federation of Pakistan through the General Manager v. Mrs. Riaz Latif PLD 1990 SC 90; Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758; Messrs Ali Woollen Mills Ltd. v. Industrial Development Bank of Pakistan and 3 others PLD 1990 SC 763; Rahim Bakhsh v. Shah Nawaz and another 2003 SCMR 1966; Vikio v. Abdullah and another 1980 PCr.LJ 602; Tassaduq Hussain v. Nouman Saeed and 2 others 2010 PCr.LJ 1990; Muhammad Rasheed Hassan v. The State (NAB) 2010 PCr.LJ 1902; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Kamal Din v. The State PLD 1983 SC 85; Sanaullah and 3 others v. The State 1983 SCMR 15; Muhammad Hussain and another v. Muhammad Khan 1983 SCMR 16; Rafiq Ahmad v. Ghulam Rasool and others 1983 SCMR 17; Aurangzeb v. Shakeel and another 2008 PCr.LJ 1565; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Nazir Nadeem v. State(sic.) PCr.LJ 160; Faisal Waheed v. State 1999 PCr.LJ 882; 1981 SCMR 1092; 1978 SCMR 1416; PLD 1974 SC 236; 1988 PCr.LJ 410; 1981 SCMR 1092; PLD 1990 SC 83 and 1985 SCMR 195 ref.

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

----S. 497(1)(2)(5)---Bail---Grant and cancellation of---Grounds recognized for cancellation of bail---Scope---Consideration for the grant of bail and cancellation of bail, were absolutely different---Once an accused had been released on bail, his liberty could not be interfered with lightly---Legitimate recognized grounds for cancellation of bail were; (i) that if the bail granting order was patently illegal, erroneous, factually incorrect, and had resulted in miscarriage of justice; (ii) that some fresh facts, or material had been collected by the Police during the investigation, which could tend to establish, or point out the guilt of accused; (iii) that accused misused his liberty by indulging in similar criminal activity; (iv) that accused interfered with the course of investigation; (v) that accused attempted to tamper with the prosecution evidence; (vi) that accused threatened the witnesses or indulged in similar activity which would hamper the smooth investigation, and there was likelihood of his fleeing to other country; and (vii) that accused made himself scare by going underground or becoming unavailable to the Investigating Agency---Said grounds were illustrative and not exhaustive---Cancellation of bail was a hard order, because it interfered with the liberty of an individual; such order must not be resolved lightly---Rejection of bail when bail was applied for, was one thing and cancellation of bail (granted) was another, because cancellation of bail would interfere with the liberty already secured by accused, either on the exercise of discretion by the court, or by thrust of law---Power to take back accused in custody, who had been enlarged on bail, was to be exercised with care and circumspection which would not mean that power though extraordinary in character, must not be exercised even, if the ends of justice so demanded.

Mushtaq Ali Tahir Kheli for Petitioner.

Syed Akbar Ali Shah and Raja Zubair, D.A.-G. for Respondents.

Date of hearing: 10th March, 2014.

2014 P Cr. L J 1472

[Peshawar]

Before Yahya Afridi and Khalid Mahmood, JJ

BAKHT MUNIR and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 41 of 2011, decided on 12th December, 2012.

Penal Code (XLV of 1860)---

----S. 377---Unnatural offence---Appreciation of evidence---Sentence, reduction in---Mitigating circumstance---Report had been lodged without any delay and recovery of semen-stained clothes from the spot confirmed the site of occurrence---Mobile phone which was used for making video of the occurrence had also been recovered from the pocket of one of accused persons---Four pieces of clothes having semen stains were sent to Forensic Science Laboratory, report of which was in positive---Investigating Officer investigated the case properly and collected the corroboratory evidence--- Minor age of the complainant/ victim and charging accused without any previous enmity or family dispute, was sufficient to connect accused with the commission of crime---Defence had failed to bring on record any reason for falsely involving accused in the case---Not a single accused claimed to have been charged due to enmity or malafidely---High-handedness and the criminal conduct of accused persons disgracing the complainant and his family could not be ignored---Statement of victim, was direct, straightforward, confidence inspiring, fully corroborated by the medical evidence, video, Forensic Science Laboratory report and other evidence produced by the prosecution---Age of accused persons who were ranging from 17 to 21 years and also being first offenders, had created mitigating circumstance warranting reduction in the quantum of sentence awarded to them by the Trial Court---Conviction of accused persons was maintained, but their sentence was reduced to ten years' R.I. each from imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to accused persons.

Muhammad Ashraf and 2 others v. The State 2004 PCr.LJ 161 rel.

Shad Muhammad Khan for Appellants.

M. Nawaz Khan Swati, A.A.-G. for the State.

Wajid Khan for Respondent.

Date of hearing: 12th December, 2012.

2014 P Cr. L J 1504

[Peshawar]

Before Ikramullah Khan, J

ZAWAR ALI---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision Nos.9-P and 10-P of 2014, decided on 23rd January, 2014.

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

----Ss. 265-C, 265-F & 324---Criminal Procedure Code (V of 1898), S.540---Attempt to Qatl-e-amd---Additional evidence---Principle---Filling in lacuna---Failure to provide copies of evidence to accused---Complainant, after close of prosecution evidence and recording of statements of accused persons filed application to summon doctor and an official who arrested accused---Trial Court dismissed the application---Validity---Trial Court had unfettered power in matter of summoning a witness, though not cited as a witness in calendar of witnesses, in case, Trial Court arrived thereof to the conclusion in the light of peculiar circumstances of a case that examination of such person as a witness was essential for just and fair dispensation of justice---Such power could not be exercised when examination of such a proposed witness introduced later on by any party to the case for the purpose of vexation or delay or defeating ends of justice---Powers conferred upon Trial Court under S.540, Cr.P.C. could be used to find out the truth but could not be exercised for filling gaps and lacuna left by either party---When no copy of statement of witnesses and documents to be exhibited by such witnesses were provided to accused at commencement of trial and before framing of charge, at such belated stage complainant could not be permitted to examine and place on record any document in shape of second medical report and card of arrest, though proposed witnesses, whose names and description were neither mentioned in calendar of witnesses nor Trial Court was apprised of them when prosecution was called out to lead its evidence---To allow such applications at such belated stage would serve no useful purpose but to increase agonies of accused party albeit they had already suffered since year, 2012---High Court declined to interfere in order passed by Trial Court--- Revision was dismissed in circumstances.

Muhammad Afzal v. The State 2001 PCr.LJ 72 and Muhammad Khan v. The State 2003 PCr.LJ 1778 rel.

(b) Criminal trial---

----Court, duty of---Scope---Duty of Court is to administer justice in just and fair manner and nevertheless, assume status of a prosecutor to put an accused in undue advantage.

Abdul Khaliq v. Ansar Mehmood 2009 YLR 486 and Mian Manzoor Ahmed Watto v. The State 2002 YLR 2362 rel.

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

----S.265-C---Non-supply of statements and documents to accused---Effect---Non-supply of such essential documents before framing of charge vitiates the whole trial.

Nadeem Ahmad Khan and others v. The State 2007 PCr.LJ 233 rel.

Zar Muhammad Afridi for Petitioner.

Nemo for the State.

Date of hearing: 23rd January, 2014.

2014 P Cr. L J 1526

[Peshawar]

Before Mrs. Irshad Qaiser, J

BAZIR---Petitioner

Versus

The STATE and another---Respondents

Criminal M/BCA No.460-A of 2013, decided on 22nd November, 2013.

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

----S. 497(5)---Bail, cancellation of---Principle---Bail once granted by competent Court of law should not be cancelled in ordinary course and there must be strong and exceptional reason for its cancellation---Bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been done.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, cancellation of---Abscondance of accused---Accused remained absconder till his co-accused was acquitted by Trial Court---Plea raised by complainant was that long standing abscondance for more than two years disentitled him from concession of bail---Validity---Prolong abscondance for more than two years disentitled accused to concession of bail---If accused sought bail on the ground of acquittal of co-accused then he must be treated alike with acquitted accused---Soon after arrest of acquitted accused, he remained behind the bars till the decision of his acquittal passed by Trial Court---Order of Trial Court releasing co-accused on bail amounted to encourage fugitives of law by giving them benefit for showing disrespect to law---High Court set aside bail granting order passed by Trial Court as the same was not correct and legal and had resulted in miscarriage of justice---Application was allowed in circumstances.

Jan Muhammad v. The State and another 1978 SCMR 287; Akhtar Ali v. Azhar Ali Shah and others 1985 SCMR 1166; Atlas Khan v. Mazamullah Khan and another 1989 PCr.LJ 2044; Ibrahim v. Hayat Gul and others 1985 SCMR 382; PLD 1979 Pesh. 16; Awal Gul v. Zawar and others PLD 1985 SC 402; Shah Muhammad Khan and another v. The State 1991 PCr.LJ Pesh. 65; Muhammad Anees and another v. Abdul Qayyum alias Kalla Khan 2013 YLR 720; Muhammad Aslam Bajwa v. The State and others 2013 MLD 280; Khadim Hussain v. State 2013 PCr.LJ 938; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Raja Zahoor Ahmed v. The State and 2 others 2005 PCr.LJ 1713 and Muhammad Iqbal v. The State and another 2003 MLD 669 ref.

Yasir Zahoor Abbasi and Ch. Arif for Appellant.

Raja Zubair, D.A.-G. for the State.

Amanullah Khan for Respondent.

Date of hearing: 22nd November, 2013.

2014 P Cr. L J 1550

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

HIDAYAT UR RAHMAN alias KAKI JAN---Appellant

Versus

The STATE through Additional Advocate-General and 5 others---Respondents

Criminal Appeals Nos.8-M, 21-M and Criminal Revision No.7-M of 2012, decided on 24th April, 2014.

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

----Ss. 302 & 34---Qatl-e-amd, common intention---Appreciation of evidence---Matter was reported to Police within a short span of forty-five minutes---Such promptly lodged report had excluded consultation for false implication of accused---Site plan of occurrence was supportive of the fact that the occurrence had taken place in the Hujra as alleged because empties had been recovered therefrom, and blood stained earth had also been taken into custody by the Investigating Officer from that place---Evidence of two prosecution witnesses cited in promptly lodged F.I.R., would carry weight---Said witnesses were subjected to lengthy cross-examination, but nothing was extracted from them, which could have caused any serious dent in their evidence---Initial report was made by deceased himself to prosecution witness in an injured condition in the hospital---Injured/deceased, at the time of making report, was in full senses, and reported the matter in an eloquence manner; assigning the role of effective shot at him to accused---Statement of injured deceased, could not be discarded on any account as the same got full corroboration from ocular, circumstantial and medical evidence---Accused remained fugitive from law for quite long time without providing any plausible explanation---Such subsequent conduct was also a corroboratory factor to his involvement in the case---Prosecution had successfully proved its case against accused beyond any shadow of doubt---Evidence produced by the prosecution qua accused was worthy reliable and confidence-inspiring---Trial Court had thoroughly assessed and scrutinized the case evidence, whereafter accused was found guilty of offence---In absence of any illegality in the judgment of conviction recorded by the Trial Court, same was maintained---Sentence awarded to accused being correct, there was no justification for its enhancement.

2011 SCMR 323; 2010 PCr.LJ 661 and 2008 PCr.LJ 424 distinguished.

(b) Criminal trial---

----Site-plan---Site plan had never been considered as a substantive piece of evidence, because it was a corroboratory factor.

(c) Criminal trial---

----Cross-case---Effect---Mere lodging of a cross-case, would not be enough to claim exoneration from a criminal liability, unless and until it specifically pleaded and proved through reliable and confidence inspiring evidence---Mere lodging of report, without giving full detail of the occurrence or casualties suffered by the opposite side, would not term the subsequent report as cross-case and the opposite side could not take any advantage thereunder.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd---Appeal against acquittal---Benefit of doubt---Prosecution having failed to prove its case qua the acquitted accused beyond any shadow of doubt, acquittal of accused person on the benefit of doubt, was legal.

Sher Muhammad Khan for Appellant.

Malak Haroon Iqbal for the Complainant.

Muhammad Javad, A.A.-G. for the State.

Date of hearing: 24th April, 2014.

2014 P Cr. L J 1559

[Peshawar]

Before Mian Fasih-ul-Mulk and Assadullah Khan Chammkani, JJ

JEHAD ALI---Appellant

Versus

RIAZ ALI and another---Respondents

Criminal Appeal No.179 of 2011, decided on 31st January, 2014.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Benefit of doubt---Presence of prosecution witnesses was highly doubtful at the time of occurrence as they had failed to explain their presence in a satisfactory manner in the house of the deceased---Testimony of said witnesses had not been corroborated by any independent evidence; their evidence could not be relied upon being set up witnesses---Conduct of both prosecution witnesses who were relatives of the deceased was unnatural---Single reason would be sufficient to discard a statement of a witness, if it would create doubt in a reasonable mind regarding his presence at the spot---One prosecution witness having made deliberate and dishonest improvement in his statement to strengthen the prosecution case his statement had lost its credibility and evidentiary value---Accused allegedly made firing at the deceased due to which she died on the spot, but no empty had been recovered from the spot, which had further made the prosecution case doubtful---Prosecution had failed to produce any one from the people of the locality who gathered at the spot at the time of occurrence---Case being of murder in which death or life imprisonment could be awarded, prosecution was bound to corroborate the evidence through independent sources, but same was lacking---Substitution of innocent person when a single accused was charged in a murder case, though was a rare phenomenon, but it would depend from case to case---Strained relations existed between the parties---Both prosecution witnesses who fell within the category of interested witnesses, had a motive to falsely implicate innocent person---Occurrence had not taken place in the manner and mode as narrated by the prosecution---Motive set up by the prosecution, was not only flimsy, but also appeared to be unnatural, which was of no help to prosecution---Medical evidence could not establish identification or the involvement of accused in the crime---Recovery of pistol as weapon of offence, had also not been proved in accordance with law---Abscondence of accused, was of no use to prosecution, because it could neither remove the defects of the oral evidence, nor was sufficient to justify the conviction---Prosecution having failed to prove the guilt of accused through unimpeachable ocular testimony, conviction of accused could not be maintained---While extending the benefit of doubt, conviction and sentence of accused, were set aside and he was acquitted, in circumstances.

Dr. Israrul Haq v. Muhammad Fayyaz 2007 SCMR 1427 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(b) Criminal trial---

----Witness---Improvement in the statement by witness---Effect---Improvement made by eye-witness in his statement, in order to strengthen the prosecution case, would lose its credibility; and evidentiary value---When a witness made deliberate and dishonest improvement changing his version in order to bring the same in line with the prosecution story same would cause serious doubt on its veracity.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----Art. 129(g)---Withholding best piece of evidence---Effect---If best piece of evidence available with a party, was withheld, it would be presumed that the party had some sinister motive for withholding the same.

(d) Criminal trial---

----Benefit of doubt---Islamic law---Suspicion, howsoever, strong, could not take the place of proof---Prosecution, primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence---If court would come to the conclusion that the charge levelled against accused had not been proved beyond reasonable doubt, then accused would become entitled for his acquittal on getting benefit of doubt---Rule of benefit of doubt was essentially a rule of prudence, which could not be ignored while dispensing justice in accordance with law---Conviction, must be based on unimpeachable evidence; and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of accused.

Saying of Holy Prophet (p.b.u.h.); Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

Rehmanullah for Appellant.

Naveed Akhter for the State.

Ghulam Nabi for the Complainant.

Date of hearing: 30th January, 2014.

2014 P Cr. L J 1588

[Peshawar]

Before Malik Manzoor Hussain, J

SHARBALANG and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No.3 of 2013, decided on 28th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss. 337-A(i), 337-L(1) & 34---Causing Shajjah-i-Khafifah and other hurt, common intention---Re-summoning of witness for re-examination---Section 540, Cr.P.C., no doubt had empowered the court to recall any witness for just decision of the case, but said section had imposed responsibility upon the court that the power should be exercised with care and caution---Power under S.540, Cr.P.C., was not meant to fill in the gaps or lacunas left by the parties to proceedings---Said power could only be exercised when the court was satisfied that further cross-examination would be essential for the just decision of the case---Appellate Court had such power, only when some material evidence was discovered subsequently which could not be collected earlier, or where a party was prevented from adducing such evidence at the trial, for extraordinary reason beyond its control and power---In the present case, the petitioners had ample opportunity at earlier round of appeal, and de novo trial stage to have applied for re-summoning of the witnesses---No material evidence in the shape of subsequent discovery having been provided to the Appellate Court, which could consider the same to be sufficient for re-summoning of witness, request of the petitioners was rightly turned down as there was no need to re-summon witness, at a very belated stage.

Alam Zeb for Petitioners.

2014 P Cr. L J 1607

[Peshawar]

Before Yahya Afridi and Musarrat Hilali, JJ

TAJ MALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.382-P of 2012, decided on 24th April, 2014.

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

----Preamble, Ss.9 & 29---Possessing and trafficking narcotics---Onus to prove the guilt of accused---Presumption in favour of prosecution---Control of Narcotic Substances Act, 1997, was a special law, which legislature had enacted mainly to curb the menace of narcotics, and had provided therein special provisions to achieve that end---Onus to prove the guilt of accused, had not been placed entirely on the prosecution, but on accused to prove his innocence---Legislature had cast a presumption in favour of the prosecution, which had to be rebutted by accused to prove his innocence--- Prosecution could not be totally absolved of his obligation; and duty of initially establishing a "prima facie" case of recovery of contraband from accused; and only after said initial burden was discharged by the prosecution that the onus would shift upon the accused to prove his innocence.

Muhammad Imran's case 2011 SCMR 1954 and Ameer Zeb's case PLD 2012 SC 380 ref.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Initial obligation of the prosecution---Appreciation of evidence---Benefit of doubt---Initial burden of establishing a 'prima facie' connection between accused and the contraband recovered from him had not been positively carried out---Most crucial links of the chain, which established the 'prima facie' connection between accused and contraband, were missing in the case---Registration number of vehicle in the name of accused, or any other distinguishing feature of the vehicle from which the recovery had been made, was not recorded in evidence by any of the prosecution witnesses---Narcotic was sent to Forensic Science Laboratory giving no name of the constable---No evidence was available to suggest as to where the alleged samples of contraband were stored after their recovery---Was not known as to how alleged samples were received at the Forensic Science Laboratory---Prosecution had not offered any plausible explanation for the delay of twelve days in sending the narcotic for its chemical analysis---Alleged recovered contraband and vehicle when produced in the court, could not be definitely linked with the case---Initial obligation of the prosecution to make out a case, as per the mandate of S.29 of Control of Narcotic Substances Act, 1997, had not been carried out in the eyes of law---Trial Court was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution in contrast to the true import of S.29 of Control of Narcotic Substances Act, 1997---Law mandated that court was to be conscious of not the quantity of contraband, but the quality of evidence produced in the court for reaching a correct conclusion and just evidence of the case---Prosecution had failed to prove charge against accused beyond any shadow of reasonable doubt---Dents existed in the prosecution case, creating sufficient doubt about the alleged recovery, the benefit of which would go to accused---Impugned conviction and sentence of accused, were set aside and he was acquitted of the charges levelled against him and was released in circumstances.

Noor Alam Khan for Appellant.

Mujahid Ali Khan, Assistant A.-G. for the State.

Date of hearing: 24th April, 2014.

2014 P Cr. L J 1625

[Peshawar]

Before Mian Fasih-ul-Mulk and Muhammad Daud Khan, JJ

SAID JEHAN alias SAIDY---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.49-M with Murder Reference No.3-M of 2012, decided on 23rd October, 2013.

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

----Ss. 302(b), 324, 337-D & 404---Qatl-e-amd, attempt to commit qatl-e-amd, Jaifa, dishonest misappropriation of property possessed by deceased---Appreciation of evidence---Interested witness---Scope---All three prosecution witnesses, though were related inter se, but nothing had been brought on the record that they had any ill-will or malice and grudge in their mind to become false witnesses and to make false statements---Interested witness was a person who had motive to falsely implicate another person---Mere relationship of a witness with the deceased was not basis to discard the evidence of such witness---Testimony of prosecution witness, was found consistent on material particulars, and no contradiction had been found in the same---Complainant had given detailed account of the incident and had confirmed the contents of F.I.R.---Two hour delay in lodging of the report was not fatal to the prosecution case because one of the prosecution witnesses, who was seriously injured in the incident, was taken to Hospital, where the complainant reported the matter to the Police---Accused was the brother-in-law of the complainant and injured prosecution witness, and no reasonable cause had been established by the defence to indicate as to why the witnesses would substitute accused by leaving real culprits---Occurrence took place inside the house where the deceased and prosecution witnesses were living together; and occurrence having took place at night, presence of the prosecution witnesses was natural and their presence on the spot could not be doubted---Parties knew each other and the mistaken identity of accused, particularly, in the presence of light of 24 volt energy saver bulb, could not be questioned---Defence had failed to bring anything against the prosecution version, or in favour of accused---Prosecution witnesses had seen the occurrence and their presence at the place of occurrence had been established---Ocular testimony had also been corroborated by the judicial confession of accused---Delay of three days in recording of confessional statement which had been retracted by accused in his statement under S.342, Cr.P.C., by itself, was not sufficient to affect its validity; because conviction could be based on confession alone, even though retracted, if the same was found to be true and voluntary---Story of prosecution had been supported by the Manager of Hotel, where accused had stayed---Story of prosecution and confessional statement of accused was further corroborated by medical evidence---Prosecution case was further supported by the recovery of blood-stained "Chhuri", an axe, a ladder, blood-stained garments of the deceased and an injured person and its positive report---Motive of the occurrence as advanced in the F.I.R. had also been established---Prosecution had been able to bring home the guilt against accused---Findings and conclusions arrived at by the Trial Court, were proper, legal, justified and needed no interference---Accused had committed a cold-blooded murder of two innocent, unarmed, helpless and defenceless persons by causing them several serious injuries on vital parts of their bodies---Accused who had committed the offence with planning, deliberately and in brutal manner, did not deserve any leniency---Trial Court had rightly passed the normal sentence which required to be confirmed---Murder Reference was answered in affirmative and death sentence awarded to accused by the Trial Court, was confirmed.

Sharafat Ali v. The State 1999 SCMR 329; Mulla Riaz Ahmed v. The State 2002 SCMR 626; Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988; Muhammad Ismail and another v. The State 1995 SCMR 1615; Muhammad Amin v. The State PLD 2006 SC 219; Majeed v. The State 2010 SCMR 55; Nabi Bakhsh v. The State and another 1999 SCMR 1972; Bismillah v. Jabbar 1998 SCMR 862; Pervez v. The State 1998 SCMR 1976 and Muhammad Tahir Aziz v. The State 2010 PCr.LJ 1787 rel.

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

----S. 164--- Confession--- Evaluation--- While evaluating the confessional statement, main object of law was to ensure its voluntariness and truthfulness---If such statement was found to have been made voluntarily, without duress, coercion and inducement and rang true, there was no hurdle to accept the same irrespective of delay, if any, if recorded within the period of legal physical remand with Police.

Sahibzada Mushtaq Ahmad for Appellant.

Razaullah for the Complainant.

Muhammad Javed, A.A.-G. for the State.

Date of hearing: 23rd October, 2013.

2014 P Cr. L J 1645

[Peshawar]

Before Qaiser Rashid Khan and Syed Afsar Shah, JJ

FAYAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.232 and Criminal Revision No.89 of 2011, decided on 27th May, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.2(c)---Qatl-e-amd---Appreciation of evidence---Accused, a minor---Age of accused at the time of occurrence was less than eighteen years---Accused being minor his case fell under the Juvenile Justice System Ordinance, 2000 and he had to be tried by the Juvenile Court---Failure of the defence to raise plea of minority at the trial, could not disentitle accused to be treated in accordance with law---Conviction and sentence awarded to accused by the Trial Court, were set aside, and while treating accused as an undertrial prisoner, his case was sent to the Trial Court for de novo trial after observing/fulfilling all the requisite formalities under the Juvenile Justice System Ordinance, 2000.

Muhammad Zubair v. The State 2010 SCMR 182 and Siraj-ud-Din v. Afzal Khan and another PLD 1997 SC 847 ref.

Shabbir Hussain Gigyani for Appellant.

Noor Alam Khan for the Complainant.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 27th May, 2014.

2014 P Cr. L J 1668

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

NOOR MUHAMMAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.31 of 2011, decided on 19th November, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant, allegedly to be sole eye-witness wrongly mentioned names of deceased minors who were his nephews, such conduct made his presence on the spot doubtful---Complainant admitted in cross-examination that firing was made by only one accused which negated his version in F.I.R.---Accused were alleged to have been armed with Kalashnikovs in the F.I.R. but complainant in his testimony deposed that one accused was armed with 303 bore rifle---No empties of the bore of alleged firearms were recovered rather empties allegedly recovered were of some other firearm and same were not sent to Forensic Science Laboratory---Site plan did not support the prosecution story regarding recoveries and presence of complainant, deceased and accused persons at the points shown in the plan---Complainant allegedly was in firing range and could not escape firing which made her presence on the spot doubtful--- Site plan showed complainant's mother, who was a witness, outside the house but in cross-examination she admitted she was inside the house---Alleged motive also negated F.I.R.---Mere absconcion without corroboration from other evidence could not be made basis for conviction---Complainant's statement that firing was made by accused who was now dead was fatal to prosecution case--- Accused was acquitted.

Anwarul Haq for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Shah Nawaz Baloch for Respondents Nos. 2 to 5.

Date of hearing: 19th November, 2013.

2014 P Cr. L J 1684

[Peshawar]

Before Rooh ul Amin Khan, J

SHAHID ULLAH---Appellant

Versus

EID MARJAN and 2 others---Respondents

Criminal Appeal No.39-B of 2012, decided on 1st November, 2013.

(a) Criminal trial---

----Evidence---Injured witness---Scope---Mere stamp of injuries on the person of witness is not a proof of the fact that whatever he deposed was truthful account of events---Veracity of injured witness is to be tested from circumstances of the case and his own statement whether it fits in circumstances of the case or otherwise.

(b) Criminal trial---

----Conviction, awarding of---Principle---For recording conviction, strong and corroborative evidence of unimpeachable character is required---Finding of guilt against accused must not be based on probabilities to be inferred from evidence.

(c) Criminal trial---

----Courts, duty of---Scope---Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party---Every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct.

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

----Ss. 324/427---Criminal Procedure Code (V of 1898), S. 417(2-A)---Attempt to commit Qatl-e-amd and mischief causing damage---Appeal against acquittal---Appreciation of evidence---Crime empties, recovery of---Abscondance of accused---Effect---Both the accused were given role of firing without assigning fatal shot to any of the injured resultantly Trial Court acquitted both the accused of the charge---Validity---Mere recovery of crime empties was of no help to prosecution in case of non-recovery of crime weapon and its comparison by Forensic Science Laboratory with crime empties---Recovered crime empties only showed that complainant sustained firearm injury and assailant left behind empties which did not carry printed name of assailant---Evidentiary value of crime empties diminished to considerable extent and could not be used as incriminating article or evidence against accused persons---Mere abscondance was not a conclusive proof of guilt of accused persons and it was only a suspicious circumstance against accused that he was found guilty of offence as suspicions after all were suspicions and the same could not take place of proof---Value of abscondance depended on the facts of each case---Abscondance of accused could be consistent with guilt or innocence of accused which was to be decided keeping in view over all facts of the case---Abscondance was a relevant fact but it could be used as a corroborative piece of evidence which could not be read in isolation but had to be read along with substantive piece of evidence---Complainant failed to point out any infirmity in judgment or any misreading or non-reading of evidence which could warrant interference of High Court in its appellate jurisdiction---Appeal was dismissed in circumstances.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

Zafar Ali Khan Khwajakhel for Appellant.

Saifur Rehman, A.A.-G. for the State.

M. Rashid Khan Wazir for Respondents.

Date of hearing: 1st November, 2013.

2014 P Cr. L J 1732

[Peshawar]

Before Ikramullah Khan, J

ISHAQ ALI SHAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1277-P of 2014, decided on 25th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Khyber Pakhtunkhwa Prevention of Gambling Ordinance (V of 1978), S.6---Possessing, trafficking narcotics, Gambling---Bail, grant of---Neither accused persons were arrested on the spot, nor any incriminating articles were recovered from their possession, or on their pointation---Whether, the place of occurrence as alleged in the F.I.R., belonged to accused or otherwise would be determined during the trial after recording evidence by the Trial Court---None of the offences, with which accused persons were charged, carried punishment of 10 years and were not hit by restrictive clause of S.497, Cr.P.C.---Accused were released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioners.

Syed Qaiser Ali Shah, Additional Advocate-General for the State.

Date of hearing: 25th August, 2014.

2014 P Cr. L J 1750

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

GHAZI MARJAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.31-D of 2013, decided on 23rd April, 2014.

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

----Ss. 25 & 27---Conviction of Investigating Officers---Principles of natural justice---Show-cause notice was not issued to the accused persons regarding omissions/commission in investigation---Under S.27 of the Anti-Terrorism Act, 1997 delinquent Investigating Officers could be convicted but principles of natural justice required that no one should be punished without giving opportunity of being heard and defended---Conviction of accused violated principles of natural justice enshrined in maxim "audi alteram partem" i.e. no one should be condemned unheard---Appeal was accepted and accused were acquitted.

Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45 and Mst. Abeda Begum v. Government of Pakistan and others NLR 1985 Civil 167 rel.

Muhammad Ismail Khan Alizai for Appellants.

Sanaullah Khan Shamim, A.A.-G. for the State.

Date of hearing: 23rd April, 2014.

2014 P Cr. L J 1764

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD FIAZ---Appellant

Versus

The STATE---Respondent

Criminal Miscellaneous No.73-A of 2014, decided on 17th March, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, possessing unlicensed arms---Bail, refusal of---Accused was directly charged in promptly lodged F.I.R. for the murder of the sister-in-law of the complainant---Sufficient ocular account, prima facie, had connected the accused with the crime---Ocular account was supported by medical evidence, recoveries, site plan and motive---Weapon of offence was recovered which was sent to Forensic Science Laboratory, along with the empties recovered from the spot, report of which was positive---Since effective role had been assigned to accused, he was not entitled to bail on the principle of consistency, when the trial had already been commenced before the Trial Court.

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

----S. 497(2)---Bail application---Cross version pleaded by accused---Points to be considered by court---Further inquiry---Court had to take a tentative account, or for that matter a bird's eye-view of the available record, which prima facie connected accused with the crime entailing capital punishment---Courts were not bound to consider every cross case to be a fit case for further inquiry; and to grant bail to accused, giving the fact that only tentative assessment was permissible at bail stage.

1992 SCMR 501; PLD 1990 SC 83 and 2005 SCMR 1402 ref.

Abdul Saboor for Appellant.

A.A.-G. and Muhammad Afzal for the State.

Abdul Waheed Azhar for the Complainant.

Date of hearing: 17th March, 2014.

2014 P Cr. L J 1787

[Peshawar]

Before Abdul Latif Khan, J

ASIL ZADA---Petitioner

Versus

BAEZZAT KHAN and another---Respondents

Criminal Miscellaneous B.C.A. No.51-M of 2014, decided on 4th July, 2014.

(a) Absconder---

----Fugitive from law and Courts loses some of his normal rights granted by procedural as well as substantive law.

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

----S. 497---Bail, grant and cancellation of---Principles---Bail once granted should not ordinarily be cancelled because principles of cancellation and granting of bail are different--- Courts should be slow in recalling bail once granted but there is no bar in recalling of bail granted to accused---Grant of concession of bail is discretionary relief which can only be extended to accused person about whom Court is satisfied that he is not connected with commission of offence.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, cancellation of---Abscondance---Accused remained absconder for 27 years and was released on bail after he was arrested---Validity---Accused was prima facie involved in commission of offence which fell within prohibitory clause of S.497, Cr.P.C.---High Court keeping in view the nature of crime and conduct of accused who remained absconder for about 27 years, did not find accused entitled to concession of bail---Court below did not assess material available on record in its true perspective while granting bail to accused---Bail was cancelled in circumstances.

Nazir Ahmad and another's case PLD 2014 SC 241 ref.

Syed Abdul Haq for Petitioner.

Azad Bakht Khan and M. Javed, A.A.-G. for Respondents.

Date of hearing: 4th July, 2014.

2014 P Cr. L J 27

[Balochistan]

Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ

ALLAUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal (C.N.S.) No.244 of 2011, decided on 9th September, 2013.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Delay in lodging F.I.R. due to practical difficulties---Charas weighing 306 kilograms was recovered from vehicle driven by accused and Trial Court convicted and sentenced him to imprisonment for life---Plea raised by accused was that F.I.R. and statements of prosecution witnesses were recorded with a delay of 7 hours---Validity---Authorities apprehended accused along with contraband Charas on 5-5-2011 at about 3-00 a.m. and due to odd hours of night, it was not possible to proceed towards police station, therefore, F.I.R. was lodged at 8-00 a.m. on 5-5-2011---Time of few hours elapsed due to practical difficulties, even otherwise mere delay in lodging F.I.R. was not fatal nor due to such delay prosecution derived any undue advantage---Statements of prosecution witnesses were worthy of credence and there was no occasion to disbelieve them---Variation in statements of witnesses, which were neither material nor serious enough to affect case of prosecution, were of no avail---Statements of witnesses had to be read as a whole and Court should not pick up sentences in isolation from entire statement ignoring its proper course---Judgment passed by Trial Court was well-founded and High Court maintained conviction and sentence awarded by Trial Court to accused---Appeal was dismissed in circumstances.

2010 SCMR 1009; 1999 SCMR 697 and 2011 YLR 1435 distinguished.

S.A.K. Rehmani v. The State 2005 SCMR 364; 2011 SCMR 872 and 2013 SCMR 280 rel.

Syed Ayaz Zahoor for Appellant.

Shoukat Ali Rakhshani, Special Prosecutor, ANF for Respondent.

Date of hearing: 3rd September, 2013.

2014 P Cr. L J 48

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

KHAN MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.407 of 2013, decided on 21st August, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 403 & 497---Penal Code (XLV of 1860), S. 379---Prevention of Corruption Act (II of 1947), S. 5(2)---Electricity Act (IX of 1910), Ss.39 & 39-A---Constitution of Pakistan, Art.13---Theft, illegal gratification, theft of energy and installation of artificial means---Bail, grant of---Imprisonment or fine---Double jeopardy, principle of---Accused was arrested for stealing electricity from pole through direct connection---Accused had been in custody since 25-7-2013, investigation was completed and he was no more required for the purposes of further investigation or interrogation---One of the factors for detaining accused was necessity of custodial interrogation and the same did not subsist any more---When an offence was also punishable with fine only, then accused was entitled to bail as of right because if at trial he was sentenced with fine only, then as undertrial prisoner, refusal of bail would amount to a case of double jeopardy which was in contravention of Art.13(a) of the Constitution and also embodied the provision of maxim nemo debt bis vexari pro eadem causa (No person should be twice disturbed for the same cause) as well as S.403, Cr.P.C. because at the end of the day, if accused was sentenced with fine alone, then it would not be possible to compensate him for his detention in judicial lock up during trial---Continued custody of accused in jail was not likely to serve any beneficial purpose at such juncture---Concession of bail should not be withheld by way of premature punishment---Bail was allowed in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 and Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 ref.

Abdul Hayee for Applicant.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 19th August, 2013.

2014 P Cr. L J 88

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

ALTAF HUSSAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.31 of 2010, decided on 31st July, 2013.

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

----S. 411---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Dishonestly receiving stolen property---Onus to prove---Appreciation of evidence---Accused persons were convicted by Trial Court and sentenced to imprisonment, as stolen property was recovered from them---Validity---Mere possession of stolen property was not sufficient to constitute an offence under S.411, P.P.C., rather in addition it had to be established that person in possession of stolen property dishonestly received or retained the property knowing or having reasons to believe the same to be stolen---Onus was always on prosecution to prove essential elements of offence---In case of failure on the part of prosecution to prove basic ingredients i.e. receipt or retention of property belonging to someone else, the property being stolen one, existence of knowledge or belief on the part of person found in possession and receipt and retention was dishonest, no conviction could be awarded---Prosecution, to establish offence under S. 411, P.P.C., must not only prove that property was stolen but it must also be established that person charged with being in possession of stolen property either knew the property to be stolen or had reasonable grounds for believing the same to be stolen---Prosecution failed to prove conscious possession of accused as recovery had not been effected from their actual and conscious possession, rather it had been effected from a passenger bus, which was driven by co-convict---High Court, in exercise of revisional jurisdiction set aside conviction and imprisonment awarded by two Courts below and accused were acquitted of the charge---Revision was allowed in circumstances.

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

----S. 439---Revisional jurisdiction of High Court---Concurrent findings of fact by two Courts below---Principle---Scope of revision is very limited, where finding of fact affecting decision is not based on evidence or it is result of misreading or non-reading of evidence on record, then revisional jurisdiction is very wide and is not a power but duty, which has to be exercised whenever facts calling for its exercise are brought to the notice of Court---Revisional Court can interfere for correction manifest illegally or prevention of gross miscarriage of justice.

Muhammad Riaz Ahmed for Petitioners.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 23rd July, 2013.

2014 P Cr. L J 113

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

NOOR UDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.347 and Murder Reference No.24 of 2009, decided on 23rd May, 2013.

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

----Ss. 302(b) & 84---Criminal Procedure Code (V of 1898), S.465---Qanun-e-Shahadat (10 of 1984), Art.121---Qatl-e-amd---Act of a person of unsound mind---Insanity and unsoundness of accused, proof---Counsel for accused had submitted that, accused was an insane person, and had been suffering from "Paranoid Schizophrenia", and that his case was fully covered by the provisions of S.84, P.P.C.---Validity---Provision of S.84, P.P.C. had provided that nothing was an offence, which was done by a person, who, at the time of doing it, by reason of unsoundness of mind, was incapable of knowing the nature of the act; or that what he was doing, was either wrong or contrary to law---Principle embodied in S.84, P.P.C., was based upon the maxim "actus non facit reum nisi mens sit rea" i.e. an act was not criminal, unless there was a criminal intent---Every person who was suffering from mental disorder, ipso facto, was not exempted from criminal liability---Any person, who would seek the benefit of S.84, P.P.C., must prove that at the time of committing the act, he was of unsound mind---Onus would be on accused to prove by Expert's evidence that he was suffering from such a mental disorder, or mental condition that he could not be expected to be aware of the consequences of his act---Expression 'unsoundness', though had not been defined in the P.P.C., but ordinarily it was treated as equivalent to insanity---Onus of proof always would remain on the prosecution, and accused was only required to show that there was a reasonable possibility of his case falling within the exception clause---Standard of proof of a plea bring the case of accused within the exception clause, need not be similar to the decree of proof as expected of the prosecution, but it was equally true that, if an accused would raise a defence, falling within the exception, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, was upon him; and the court would presume the absence, of such circumstances as contemplated under Art.121 of the Qanun-e-Shahadat, 1984---Nothing was on record to infer that accused was of unsound mind at the time of occurrence---Behaviour of accused at the time and subsequent to the commission of the crime, had clearly indicated that he knew and was capable of knowing the nature of the act done by him---Being annoyed with the attitude of deceased, accused appeared to have taken a conscious/sensible decision of committing the murder of the deceased---Behaviour of accused, at no point of time, was shown to be abnormal---Opinion of Medical Standing Board, also did not indicate that accused was not capable of knowing the consequences of his act---Accused was sane and understood the implications of the act done by him, and in no case was having unsound mind within the meaning of S.84, P.P.C. at relevant time---Trial Court rejected defence plea on sound reasoning, and no exception could be taken to such reasoning.

Khizar Hayat v. The State 2006 SCMR 1755 rel.

Khizar Hayat v. The State 2006 SCMR 1755 and Aurangzeb v. The State 1971 PCr.LJ 1285 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was nominated as a sole perpetrator in the F.I.R.---Day-light occurrence had taken place in the house of deceased and the matter was incorporated in Police Roznamcha---Ocular account, furnished by the prosecution witnesses, had been fully corroborated by the medical evidence, as well as the recovery of crime weapon, followed by positive report of Forensic Science Laboratory---Despite lengthy cross-examination, the defence failed to create dent in the ocular account, furnished by the prosecution witnesses---Prosecution witnesses were inmates of the house, where the deceased was done to death, and their presence at the place of occurrence, or at the time of incident could not be doubted being natural witnesses---Two prosecution witnesses, though were the sons of the deceased, but only on account of their relationship with the deceased, they could not be termed as interested witnesses, for the reasons that they had no direct animosity with accused, who had been implicated in the present case as a sole perpetrator---Accused, in circumstances, was rightly found guilty of the charge by the Trial Court---Murder Reference was answered in affirmative, in circumstances.

Muhammad Amin v. The State 2000 SCMR 1784 and Muhammad Akhtar Ali v. The State 2000 SCMR 727 rel.

Syal Khan Durrani for Appellant (in Criminal Appeal No.347 of 2009).

Abdul Sattar Durrani, Additional Prosecutor-General for the State (in both Appeal and Reference).

Syal Khan Durrani for the Counsel (in Murder Reference No.24 of 2009).

Date of hearing: 6th May, 2013.

2014 P Cr. L J 178

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD AYUB---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.443 of 2013, decided on 20th September, 2013.

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

----S. 497---Grant or refusal of bail---Considerations---Importance of individual's personal liberty and the society's interest---Society had a vital interest in grant or refusal of bail, because every offence was the offence against the State---Order, granting or refusing bail, must reflect perfect balance between the conflicting interests; viz, sanctity of individual's liberty and the interest of the society---While granting or refusing bail, two conflicting interests, namely the requirement of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail; and the absolute adherence of fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he was found guilty.

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

----Ss. 345(7) & 497---Penal Code (XLV of 1860), Ss.302(c), 392 & 396---Qatl-e-amd, robbery, dacoity with murder---Compromise effected between the parties---Human life was the most valuable of all the things---Islam as a religion of humanity attached utmost sanctity to human life---Murder of a human being was the greatest sin after the sin of 'shirk' (Assigning partners with Almighty Allah), and was unpardonable, particularly when committed during the course of dacoity in view of the bar under S.345(7), Cr.P.C.---Islamic Sharia had divided the punishments for crimes into three categories; Hudood; Qisas; and Ta'zir---Said punishments, which had been determined by the Holy Quran and the Sunnah for crimes, were called Hudood---Punishments for crime, involving the rights of individuals, were called as Qisas; and the punishments for crimes, which had not been fixed by the Holy Quran or Sunnah, but had been left to discretion of the rulers and the Judges, were called as Tazir---Where compromise between the parties had been reached in non-compoundable offences during pendency of the appeal, the courts had taken the compromise as a ground for reduction in the quantum of sentence only, but in the matters of bail, same could only be considered as one of the facts, alongside the facts and circumstances of the case, for determining whether bail be granted or not---Any person, who was an accused of a non-compoundable offence, was not entitled to claim bail as a matter of right on the sole strength of compromise---Offence of murder, punishable with death under S.302(a), P.P.C., and under S.302(b), P.P.C. as Tazir, though was compoundable under the law, but where murder had taken place during the course of committing a dacoity, punishable with death under S.396, P.P.C., or an offence under S.392, P.P.C., was not compoundable.

Al-Qur'an; Muhammad Rawab v. The State 2004 SCMR 1170; Ghulam Farid alias Farida v. The State PLD 2006 SC 53 and Jamshed alias Javed v. The State 2001 PCr.LJ 1493 ref.

Muhammad Rawab v. The State 2004 SCMR 1170 rel.

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

----Ss. 497 & 345---Penal Code (XLV of 1860), Ss.302 & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Qatl-e-amd, robbery, Haraabah---Bail, refusal of---Accused was caught red-handed with crime weapon, while snatching motorcycle from the complainant, who was student of F.Sc.---Besides committing murder, accused also made murderous attempt upon the complainant who sustained a fire-arm injury---Offence under S.392, P.P.C., did not find its mention in S.345(1), Cr.P.C. in the category of the offences which were compoundable---Offences under Ss.302 & 392, P.P.C., as well as an offence under S.17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were also not bailable---Merits of the case did not justify the grant of bail to accused; and compromise allegedly, effected between the parties, neither could be taken into consideration nor it entitled accused for the concession of bail.

Muhammad Shabbir Rajput for Applicant.

Abdul Sattar Durrani, D.P.-G. for the State.

Date of hearing: 5th September, 2013.

2014 P Cr. L J 240

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

ABDUL KARIM---Petitioner

Versus

The S.H.O. SARIAB POLICE STATION QUETTA and 3 others---Respondents

Criminal Quashment Petition No.367 of 2012, decided on 30th July, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Inherent powers of High Court---Second F.I.R.---Scope of S.22-A, Cr.P.C.---Ex-Officio Justice of Peace dismissed application filed by petitioner for registration of second F.I.R.---Validity---No embargo existed with regard to registration of second F.I.R. in respect of different version given by aggrieved party of the same occurrence---Only impediment was that second F.I.R. should not contain facts for mere amplification of first version---No hard and fast rules or principles could be laid down as to when second F.I.R. could or should be recorded---Provisions of S.22-A, Cr.P.C. were limited only to the extent of directing concerned authorities to register criminal case---At the time of first information report, proposed accused persons named in complaint had no right of hearing---High Court set aside the order passed by Ex-Officio Justice of Peace and remanded the matter for decision afresh---Petition was allowed accordingly.

Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119; Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556 and Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 ref.

Mushtaq Ahmed Anjum for Petitioner.

Miss Sarwat Hina, Additional Prosecutor-General along with SI/SHO along with Din Muhammad Barech for the State.

Respondents Nos.3 and 4 in person.

Date of hearing: 23rd July, 2013.

2014 P Cr. L J 256

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

AZAD KHAN---Petitioner

Versus

The STATION HOUSE OFFICER, POLICE STATION SATELLITE TOWN QUETTA and 2 others---Respondents

Criminal Quashment No.274 of 2013, decided on 6th September, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 182 & 190---Petition for registration of second F.I.R.---Scope---No embargo existed with regard to registration of second F.I.R. in respect of different versions given by the aggrieved party of the same occurrence---Only impediment was that second F.I.R. should not contain the facts for the mere amplification of the first version---Contention that only alternate remedy available to the petitioner seeking registration of second F.I.R. was to file a private complaint was without any substance---Law though could also be set into motion by filing of a private complaint before a Magistrate as provided by S.190, Cr.P.C., but there could be some cases, where the evidence to prove the commission of an offence could not be collected, except through the Police Agency---Mere availability of alternate remedy, neither would absolve the S.H.O. from discharging his official duties as envisaged under S.154, Cr.P.C., nor deter the court from giving directions to the Police to record second F.I.R. in an appropriate case---Contention that in case direction for registration of second F.I.R. was given, then the matter would never end; and there would be a chain and repetition of F.I.Rs., was repelled, since S.182, Cr.P.C. had furnished a complete answer to the contention---If a person would give the first information report to Police Officer, which subsequently was found to be false, the informant could be liable to punishment under provisions of S.182, Cr.P.C.---S.H.O. concerned was directed to register the F.I.R. of the petitioner as per his version against the proposed accused persons strictly in accordance with law, in circumstances.

Wajid Ali Khan Durrani v. Government of Sindh 2001 SCMR 1556 rel.

Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 ref.

Attaullah Kakar for Petitioner.

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

Date of hearing: 27th August, 2013.

2014 P Cr. L J 267

[Balochistan]

Before Abdul Qadir Mengal and Mrs. Syeda Tahira Safdar, JJ

ALI JAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.70 of 2011, decided on 26th September, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Prosecution had successfully established, the recovery of contraband charas and opium from the possession of accused, whose presence at the place of incident was not denied---All the three witnesses specifically stated that Anti-Narcotics Force Commander received source information about the presence of narcotic substance with accused for transportation of the same out of the country---Evidence of the prosecution was not controverted or rebutted successfully---Evidence produced by accused in their defence also described their involvement in the commission of the alleged offence---Accused neither denied their presence at the site nor justified their presence, whereas record had reflected that none of them was permanently residing there---No illegality, impropriety, misreading and non-reading of the evidence was found in the impugned judgment passed by the Trial Court---Prosecution evidence was not only corroboratory but also reliable and confidence inspiring---Nothing was in the evidence which could show any ulterior motive or design to involve or implicate accused in the alleged offence---Conviction and sentence awarded to accused under S.9(c) of Control of Narcotic Substances Act, 1997 by the Trial Court, was maintained and appeal to that extent was dismissed, in circumstances.

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

----Ss. 9(c) & 29--- Possessing and trafficking narcotics---Presumption---Prima facie, sole duty lay on the shoulders of prosecution to show the recovery of the contraband articles from accused; and in case of proving the factum of recovery, responsibility would shift on the shoulders of accused persons, in view of S.29 of Control of Narcotic Substances Act, 1997 to prove the fact that they had no concern or connection in recovery of contraband material or no contraband material was recovered from their possession.

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

----Ss. 9(c), 37 & 39---Possessing and trafficking narcotics---Freezing and forfeiture of assets---Amount lying in the accounts of accused had been improperly seized and confiscated, as the Trial Court failed to inquire properly and adjudicate upon the application filed under S.37 of Control of Narcotic Substances Act, 1997---Trial Court failed to put substance of the allegation to accused; and did not give the accused a chance to show that amount lying in his account was not the proceed of the narcotics---Prima facie, duty of Anti-Narcotics Force Authorities was to collect material to connect the alleged account that was maintained by accused; and showing that same was the result of the proceed of the narcotics; and that he had no other means to earn or deposit the amount---Impugned order being not legal was set aside---Application filed by the Anti-Narcotics Force under S.37 of the Control of Narcotic Substances Act, 1997, would be treated as pending before the Special Judge concerned, who was directed to observe the legal formalities as provided under S.39 of the Control of Narcotic Substances Act, 1997 and to decide the matter in accordance with law.

S. A. M. Qadri for Appellants.

Shaukat Ali Rakhshani, Special Prosecutor, ANF for the State.

Date of hearing: 24th July, 2013.

2014 P Cr. L J 308

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

JALAL UD DIN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 359 and 360 of 2013, decided on 2nd August, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substances Act (XI of 1908), Ss.3, 4 & 5---Recovery of explosive substance---Bail, refusal of---Potassium Chlorate packed in 80 sacks was recovered from the possession of accused---Plea raised by accused was that the material recovered from them was not explosive itself---Validity---"Potassium Chloride" by itself was not an explosive substance but accused were found in possession of "Potassium Chlorate" and not "Potassium Chloride"---"Potassium Chlorate" was derived from "Potassium Chloride" by means of chemical process and the same could be used in country made bombs etc.---Besides evidence of Bomb Disposal Commander, prosecution had also placed on record certificate issued in that regard---Mere possession, in absence of strict proof of mala fide intention of person in possession of explosive did not constitute offence within the meaning of either S.3 or 4 of Explosive Substances Act, 1908, and case would be covered by S.5 of Explosive Substances Act, 1908---Tentative assessment of evidence available on record gave rise to suspicion and accused had not been able to give any plausible explanation to dispel the same---Sentence for a term which might extend to fourteen years, had been provided under S.5 of Explosive Substances Act, 1908, and the same fell within the prohibitory clause of S.497, Cr.P.C.---Bail was refused in circumstances.

Muhammad Ayub Tareen and Asif Barech for Applicants.

Amir Hamza Mengal, Deputy Prosecutor-General for the State.

Date of hearing: 31st July, 2013.

2014 P Cr. L J 410

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ijaz Swati, JJ

GHULAM DASTAGEER---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.264, 265 and 266 of 2012, decided on 31st October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 367 & 561-A---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25---Confiscated vehicle, custody of---Jurisdiction of Trial Court---Direction of Supreme Court---Trial Court confiscated vehicle in question and declined its custody on the plea that the same would be review of its own judgment---Validity---Confiscation order did not fall within the definition of "judgment" as contemplated under S.367, Cr.P.C.---Supreme Court permitted appellant to file application before Trial Court and also directed Trial Court to entertain the application and decide the same---Trial Court was bound to decide entitlement of appellant regarding vehicle in question on its own merits---Trial Court erred in law by dismissing application on such erroneous unwarranted and unjustified reason---High Court set aside order passed by Trial Court and remanded the application for decision afresh---Appeal was allowed accordingly.

Adnan Ejaz and Abdul Rauf for Appellant (in Criminal Appeal No.264 of 2012).

Malik Sultan Mehmood, Special Prosecutor for the State (in Criminal Appeal No.264 of 2012).

Kamran Murtaza for Appellant (in Criminal Appeal Nos.265 and 266 of 2012).

Date of hearing: 10th September, 2013.

2014 P Cr. L J 432

[Balochistan]

Before Qazi Faez Isa, C.J.

The STATE through Prosecutor-General Balochistan, Quetta---Applicant

Versus

ABDUL ALEEM and 2 others---Respondents

Criminal Quashment No.406 of 2013, decided on 25th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Custody of vehicle---Fake number plates---Magistrate handed over interim custody of vehicle in question to accused---Validity---One of the allegations made against accused was that he was driving vehicle with fake number plates, therefore, by returning custody of vehicle but without ensuring that it had proper plates, the Magistrate actually permitted the vehicle to be driven either without number plates or with fake number plates---Lower Appellate Court also did not examine the matter in its proper perspective and simply upheld the order of Magistrate---Accused had paid the applicable motor vehicle tax and accumulated arrears and also produced original number plates---Compliance with applicable law having been made, vehicle could be retained by accused till the conclusion of trial---Petition was disposed of accordingly.

Ms. Sarwat Hina, Additional Prosecutor-General for the State.

Respondent No.1 in person.

Tariq Mehmood Butt and Ghulam Nabi for surety.

Date of hearing: 25th October, 2013.

2014 P Cr. L J 449

[Balochistan]

Before Muhammad Ejaz Swati, J

KHAN MUHAMMAD and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.583 and 592 of 2013, decided on 29th November, 2013.

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

----S. 497 (1)---Bail---Offences not falling under prohibitory clause of S.497, Cr.P.C.---Scope---Even in respect of offences not falling under prohibitory clause of S.497, Cr.P.C., the Court may decline to admit accused on bail, if there exist recognized exceptional circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 408 & 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, misappropriation and illegal gratification---Bail, refusal of---Accused were holding public offices and were entrusted with duty to ensure that arms and ammunitions kept in Police Lines, was for the purpose of protection and safeguard the life and property of public at large---Huge quantity of arms and ammunition missing from law-enforcing officials not only made accused liable for breach of trust and misappropriation but the incident had also endangered public peace and tranquillity---Missing arms and ammunitions were not recovered and apprehension of its misuse could not be ruled out---Responsibilities of accused as per their designation was a matter of evidence---Prima facie, there was sufficient evidence on record to connect accused with commission of offence---Bail was refused in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.

H. Shakil Ahmed for Applicant (in Criminal Bail Application No.583 of 2013).

Abdul Karim Malghani for the State (in Criminal Bail Application No.583 of 2013).

W.N. Kohli for Applicants (in Criminal Bail Application No.592 of 2013).

Abdul Karim Malghani for the State (in Criminal Bail Application No.592 of 2013).

Date of hearing: 22nd November, 2013.

2014 P Cr. L J 571

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ

Haji MUHAMMAD JAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.4 of 2007, decided on 26th September, 2013.

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

----Ss. 302(b), 148 & 149--- Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd, common object, act of terrorism---Appreciation of evidence---Some contradictions, though were noticed in the evidence of the prosecution witnesses, but their evidence could not altogether be excluded from consideration--- Eye-witnesses, had indicated that accused, after taking shelter near Masjid, had fired and killed deceased person---Medical reports had shown that deceased person had received injuries with sharp-edged weapon, along with firearms injuries---Both accused persons in their statements admitted the occurrence, their presence on the site, and also the motive which had been alleged by the eye-witnesses---Statements of accused persons, had fully corroborated the evidence of the eye-witnesses that accused were present along with the absconding accused---Statements of accused persons had shown that they were concealing the facts by not speaking the truth--- Evidence of the eye-witnesses could not be disbelieved in total, but could safely be relied upon which had established, accused persons' participation in the crime---Evidence of Investigating Officer and recovery witness, had corroborated the facts---Statements of the witnesses, did not suffer from any major contradiction, rather each of them corroborated the statement of the other---Said reliable evidence had established the act of accused persons that they, after making unlawful assembly, committed an offence falling under S.149, P.P.C.---Accused persons with common object making unlawful assembly, having murdered four persons and injured one in a gruesome manner in daylight had brought the matter under S.6(a) of Anti-Terrorism Act, 1997, punishable under S.7(a) of that Act---Well-reasoned judgment passed by the Special Judge, Anti-Terrorism Court, not suffering from any misreading or non-reading of material and law, was upheld and appeal against said judgment being without merits, was dismissed.

(b) Criminal trial---

----Evidence---Interested and inimical witnesses---Corroboration, rule of---Rule in regard to corroboration of the evidence of the interested and inimical witnesses, was that of caution and it virtually had ripened into a rule of law---Such testimony needed corroboration from independent nature.

Tawaib Khan v. The State PLD 1970 SC 13 rel.

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

----Arts. 39 & 40--- Admission/confession in custody of Police---Admissibility---Information received from accused---Proof---Admission under Art.40 of Qanun-e-Shahadat, 1984 must lead to discovery of some new fact or result in recovery of property of the case---Mere statement about the facts already in knowledge, was not admissible---Disclosure made by accused could not be used as an admission within the meaning of Art.39 of Qanun-e-Shahadat, 1984, whereby, confession of accused in custody recorded by the Police not to prove as against him.

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

----S. 149--- Commission of offence by any member of unlawful assembly in prosecution of common object of the assembly---Liability---Person was liable for what he himself had done, and not for what was done by some other persons---Section 149, P.P.C., was an exception to said general rule---Every member of an unlawful assembly in the described circumstances, was vicariously liable for an offence committed by another member of the assembly.

2007 PCr.LJ 1860 rel.

Muhammad Riaz Ahmed for Appellants.

Ms. Taiyaba Altaf, Special Prosecutor ATA for the State.

Date of hearing: 1st August, 2013.

2014 P Cr. L J 594

[Balochistan]

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

INAYATULLAH and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.264 of 2013, heard on 22nd October, 2013.

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

----Ss. 302(b), 34 & 337-D---Qatl-e-amd, common intention, Jaifah---Appreciation of evidence---Benefit of doubt---Deceased and injured had received firearm injuries, but except to the absconding accused, no role with regard to firing, had been attributed to any of accused persons---Medical certificate showed that there was no injury on the other parts of the body of injured, except on the left eye, which the injured had himself admitted that he received clip hit on his left eye---Neither any direct evidence was available against accused persons regarding sustaining injuries to the deceased and injured, nor any recovery of whatsoever nature had been effected from any of accused persons to involve them in the commission of the offence under S.34, P.P.C.---Material contradictions were noticed in the statements of the prosecution witnesses; and nothing was on record connecting accused persons with the commission of the offence, which had created doubt, benefit whereof was extended in favour of accused persons---Trial Court having not properly appreciated such aspect of the case in its true perspective, had come to a wrong conclusion---Case for acquittal of accused persons having been made out, they were acquitted, in circumstances.

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

----S. 34---Common intention---When an act was done by several persons, in furtherance of common intention, each of such persons was liable for that act which was done by him.

Muhammad Aslam Chishti, Muhammad Saleem Lashari and Munir Ahmed Langove for Appellants.

Atique Ahmed Khan, Deputy Prosecutor-General for the State.

Date of hearing: 22nd October, 2013.

2014 P Cr. L J 636

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

EJAZ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.5 of 2014, decided on 8th January, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-e-amd, abetment, common intention---Doctrine of "Falsus in uno falsus in omnibus", applicability---Bail, refusal of---Co-accused persons had been acquitted, but their acquittal could not bring the case of accused at par with said acquitted co-accused; because only the allegation of abetment and instigation was levelled against them; while accused had been assigned overt act towards commission of offence---Doctrine of "falsus in uno falsus in omnibus" (False in one thing, false in all) was not applicable in the prevalent system of criminal administration of justice---Rule that if one set of accused was not found guilty, the other accused ipso facto would stand acquitted was not universally applicable---Court had to sift the grain from the chaff---Judgment of acquittal of co-accused would be of no avail to accused; as his case was entirely distinguishable from that of acquitted co-accused---In the present case, no one else was targetted, but the deceased, who had murdered brother of accused---Accused remained absconder for more than two years---Mere abscondence though by itself, was not sufficient to refuse the bail to an accused, but if proceedings under Ss.87 & 88, Cr.P.C., had been initiated in the first round of litigation, it could be considered as a strong piece of corroborative piece of evidence to the other direct and circumstantial evidence of the case---Accused being fugitive from law, his conduct after the incident prima facie, was indicative of guilt, when considered in conjunction with the other ocular and circumstantial evidence---Delay of 1 hour and 15 minutes in reporting the matter to Police, could not be considered fatal to prosecution case---Accused having failed to make out a case, he was not entitled for concession of bail.

Samano v. State 1973 SCMR 162; Riaz Hussain v. The State 2001 SCMR 177; Muhammad Mansha v. The State 2001 SCMR 199; Noor Elahi's case PLD 1976 SC 557; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Rohtas Khan v. The State 2010 SCMR 566 and Amanullah v. The State 2002 PCr.LJ 1934 ref.

(b) Criminal trial---

----Motive---Purpose, nature and importance---Motive was an energetic source of mind, which would provide a propelling force and give impetus to perform any action, or to do any act---Motive was a double-edged weapon, but its significance and importance could not be ignored---Motive could not be sine qua non for bringing offence home to accused, yet relevant and significant enough to determine the factum of intention, and could be considered in view of facts and circumstances of the case---Substitution of real culprits with accused due to already available motive between deceased and accused, was not acceptable.

(c) Criminal trial---

----Witness---Interested witness---Eye-witness---Scope---Merely on the basis of inter se relationship, the statement of eye-witnesses could not be discarded; because it was not the relationship, but the value of the evidence, which mattered---"Interested witness" was one who had the motive to falsely implicate accused or had some rancor or enmity---No rule of law existed that statement of interested witness could not be considered, but same could safely be relied upon, if supported by surrounding circumstances.

Muhammad Qahir Shah for Applicant.

Miss Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 8th January, 2014.

2014 P Cr. L J 744

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

MANZOOR HUSSAIN alias MAMA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.31 of 2013, decided on 7th March, 2014.

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

----S. 324---Attempt to commit qatl-e-amd---Appreciation of evidence---Sentence---Scheme of S.324, P.P.C.---Eye-witnesses had fully implicated accused in the case---Injuries caused to the complainant by accused, having been proved by means of ocular evidence, and corroborated by medical testimony, requirement of motive and its discovery, was totally irrelevant---Plea of false implication as well as alibi taken by defence, were left unattended by the defence---No explanation was brought on record for not leading the evidence on such crucial points, which could have adversely affected the prosecution case, but same was not done---Case being of attempt to commit "qatl-e-amd", S.324, P.P.C. had its own scheme of sentence, which had two parts: By virtue of first part, the perpetrator of crime would be punished with imprisonment, which could extend to 10 years, if he did any act with such intention or knowledge, and under such circumstances, that he by that act caused "qatl", he would be guilty of "qatl-e-amd"; there was no punishment of "Arsh" or "Daman", provided for the offence falling within the ambit of first part of S.324, P.P.C., while in the second part, if any hurt was caused in the process of such act, the offender would be liable to punishment provided for the hurt caused, in addition to the imprisonment and fine, mentioned in the first part of S.324, P.P.C.---Act of the attempt should be with such intention or knowledge and the circumstances under which the attempt had been made---Accused while carrying the intention of murder of the complainant, initially took a lethal weapon with him, and slipped from his official duty and came to the place of occurrence, where soon after his arrival, and without uttering a single word, he fired repeated gunshots upon the complainant---Complainant survived, though he was seriously injured---Accused though could not succeed in achieving the object of death of complainant, but by doing so, his intention was not only shown, but was also completed---First part of S.324, P.P.C. would come into play, and accused was liable to death within the purview of scheme of law---Accused, was rightly convicted, which did not warrant any interference by High Court---Impugned judgment of the Trial Court was upheld, in circumstances.

Sarfraz alias Sappi v. The State 2000 SCMR 1758; Muhammad Hayat v. Abdus Salam 2001 PCr.LJ 557 and Haji Maa Din v. The State 1998 SCMR 1528 ref.

(b) Criminal trial---

----Motive---Scope---Absence of motive, was not helpful in presence of unimpeachable ocular evidence, while the substitution of perpetrator of crime was very rare phenomenon---Motive was not always necessary, but once it was alleged by the prosecution, then it was to be proved beyond any doubt.

Wali Muhammad v. The State 1984 SCMR 540 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Extending benefit of doubt to accused, was his right and withholding same was non-exercise of jurisdiction for which the court would owe a duty to explain as to why accused was not being given the benefit of doubt---Prosecution case could not be strengthened on the basis of weaknesses of the defence; and the benefit of a minor doubt would necessarily be extended in favour of accused.

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

----Art. 129(g)---Criminal Procedure Code (V of 1898), S.265-F(7)---Giving up material witnesses---Where material witnesses would be given up by the prosecution, inference could be drawn that if they would have appeared in the court, they might have disclosed true picture of the incident with reference to the absence of accused from the place of occurrence---Prosecution was not legally bound to produce all the witnesses because it was the quality of the evidence, but not quantity which would matter---Defence was always at liberty to summon a prosecution witness, who had been given up with an object to unearth true facts before the court---Adverse presumption as covered under Art.129(g) of Qanun-e-Shahadat, 1984, could be drawn against accused that the given up witnesses were not ready to authenticate his plea of alibi.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

(e) Criminal trial---

----Evidence---Case was not to be adjudicated on the basis of surmises and conjectures, or speculations drawn on basis of articulate defence, but should strictly be decided on the basis of evidence available on record.

(f) Criminal trial---

----Plea of alibi---Scope---Plea of alibi being special plea, was required to be introduced as soon as possible, when there was sufficient evidence available with the defence to prove its plea---Such evidence was to be produced during course of investigation; in case of failure of Investigating Officer to do the needful, same was to be brought on record with interference of remanding court or thereafter by the Trial Court.

Allah Wadhoyo v. The State 2001 SCMR 25 ref.

(g) Criminal trial---

----Evidence--- Contradictions in the testimonies of prosecution witnesses---Scope and effect---Contradictions in the statements of prosecution witnesses were always fatal to the prosecution case---Irrespective of veracity of the defence version, a distinction was always to be made between minor inconsistencies or variance in the testimony of witness from the contradiction in the evidence---Only such statements would be termed as contradictory, which were, either destructive of each other, or those were totally different to the extent that two versions could not be reconciled---Such contradictions would always lead to the benefit of defence, but the variance of testimony of witnesses or inconsistencies on the point would not lead to such conclusion, which were not material in nature and did not introduce or suggest a totally different version to the prosecution case.

Sarfraz alias Sappi v. The State 2000 SCMR 1758 ref.

Adnan Ejaz for Appellant.

Dawood Khan Kasi for the Complainant.

Abdul Karim Malghani for the State.

Date of hearing: 29th November, 2013.

2014 P Cr. L J 914

[Balochistan]

Before Jamal Khan Mandokhail and Muhammad Kamran Khan Mulakhail, JJ

NAZEER AHMED---Appellant

Versus

ABID AHMED and another---Respondents

Criminal Acquittal Appeal No.337 of 2013, decided on 20th March, 2014.

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

----S. 417(2-A)---Appeal against acquittal---Delay in filing appeal, condonation of---Special limitation of thirty days for filing of appeal against acquittal had been provided under provisions of S.417(2-A), Cr.P.C.---If appeal against acquittal had not been filed within said prescribed period of 30 days, then accused would acquire a valuable right of liberty, which could not be withheld on the basis of ignorance of law; as it would amount to keeping a lis alive---Irrespective of the reasons mentioned in the application for condonation of delay for filing appeal against acquittal, delay was not to be condoned, unless it could be shown that the person seeking condonation was actually kept out of knowledge of the acquittal; and/or prevented by some act of accused from coming in time---Delay would scarcely ever be condoned; and certainly not only the ground that appellant had miscalculated the period of limitation; and therefore there was delay for doing the needful within time---Special limitation prescribed by statute itself, was not subject to the application of S.5 of the Limitation Act, 1908, due to bar contained in S.29(2)(a)(b) of Limitation Act, 1908---If an aggrieved person would bring an appeal against acquittal after the expiry of time limit, the courts were bound to look into the sustainability of verdict of acquittal, and if, reasonable justification was available manifesting interference of appellate court, when the verdict of the Trial Court was suffering from inherent legal defects; and being perverse, shocking and verdict rendered, was not supported by the record; or having been passed in utter violation of Supreme Court dictum, then the court was bound to look into the matter at the touchstone of the administration of criminal justice for reappraisal of evidence.

Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151; Mst. Zeenat Sultana's case PLD 2004 SC 667 and Noor Hussain v. Muhammad Salim 1985 SCMR 893 ref.

(b) Words and phrases---

----"Aggrieved"---Meaning, explained.

Black's Law Dictionary 4th Edition at page 87 ref.

(c) Words and phrases---

----'Person aggrieved', defined and explained.

Mir Gul's case 1999 PCr.LJ 1507 ref.

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

----Ss. 337-A(i), 337-F(i) & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Causing Shajjah-i-Khafifah, damiyah, common intention---Appeal against acquittal, competency of---"Person aggrieved"---Appeal against acquittal was not filed by the victim lady, but by her brother---Contention of appellant was, since the victim of the case was a "Pardahnashin" lady, appellant being her brother and the complainant of the case, fulfilled the requirement of law as "person aggrieved"---Further contention was that there was no impediment under the law, and the complainant could file an appeal against acquittal---Validity---Contentions of appellant/brother of victim lady, did not carry any weight---Record had revealed that the victim lady, not only appeared before the Trial Court, but had also faced the cross-examination conducted by the defence---For filing appeal against acquittal the victim or the aggrieved person was required once only, to swear upon an affidavit appended with memo of the appeal before the Commissioner for taking oath in the presentation branch of the court---Victim lady was not required to remain present on each and every date---Complainant being informer alone did not qualify the test of an "aggrieved person"---Injured/victim lady, neither was minor nor insane, and was alive---Appeal against acquittal filed by brother of the victim lady, in circumstances, was incompetent and liable to be dismissed.

Jamal Abdul Nasir for Appellant.

Date of hearing: 5th December, 2013.

2014 P Cr. L J 951

[Balochistan]

Before Muhammad Noor Meskanzai and Shakeel Ahmed Baloch, JJ

MUHAMMAD HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.46 of 2012, decided on 13th March, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Statement of witness who had lastly seen accused and the deceased, had supported the confessional statement recorded by accused before Judicial Magistrate---Recovery of the empty shell (cartridge) of the pistol used in the commission of the crime, further corroborated the evidence of prosecution witnesses---Confessional statement of accused was recorded voluntarily without any duress---Nothing was on record to show that confession was either due to any threat, coersion or pressure---No flaw was found in recording the confession, because Judicial Magistrate had complied all the pre-requisite formalities for recording the confession, which was voluntary and truthful---No legal bar existed for recording conviction on a confession which was subsequently retracted, if it was voluntary and true---Prosecution witnesses, were consistent and had corroborated each other; their statements further got support from the prompt registration of the F.I.R., the recovery memo, and the confessional statement made by accused---Witnesses were thoroughly cross-examined, but they remained firm, and had not been shaken---Trial Court after proper appraisal of the evidence; and the material available on record, had come to a just and right conclusion---In absence of any illegality or irregularity, in the impugned judgment, same could not be interfered in appeal.

Joygum Bibi v. The State PLD 1960 SC 313 and Khuda Bakhsh v. The State 2004 SCMR 331 ref.

Abdul Karim Yousafzai for Appellant.

Amir Hamza, Deputy Prosecutor-General for the State.

Date of hearing: 4th December, 2013.

2014 P Cr. L J 1007

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

MUHAMMAD HANIF---Petitioner

Versus

S.H.O. POLICE STATION NEW SARIAB, QUETTA and 2 others---Respondents

Criminal Quashment No.625 of 2013, decided on 21st March, 2014.

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

----Ss. 154, 156, 173 & 190---Information of cognizable offence---Recording of F.I.R.---Investigation in the case---Powers and duties of S.H.O.---S.H.O., was under statutory duty to reduce into writing the information given to him by the informant about commission of cognizable offence, and investigate the matter---S.H.O., need not determine the guilt or innocence of accused persons; he was bestowed with the duty just to differentiate the nature of offence reported to him including recording of F.I.R.---Whenever S.H.O. received a report, the only power conferred on him was to decide as to under which category of offence the information so received fell whether the same was cognizable or non-cognizable---Obligation of the S.H.O./Investigating Officer, was not to satisfy the parties to the case or to render any opinion about guilt or innocence of an accused, but his duty was only to collect all the relevant evidence---In the reports to be submitted by the Police in connection with investigation of a criminal case, it could comment about sufficient or otherwise of the evidence available against accused, but it could not comment upon credence or otherwise of evidence becoming available on record---Question of worthiness or credence or otherwise of such evidence, was to be attended to by the Magistrate empowered under S.190, Cr.P.C., or by the Trial Court---Law cast an obligation upon the S.H.O./Investigating Officer for collecting the evidence and the evidence alone.

Mrs. Ghanwa Bhutto's case PLD 1997 Kar. 119; Muhammad Bashir's case PLD 2007 SC 539; Khizar Hayat's case PLD 2005 Lah. 470 and Wajid Ali Khan Durrani v. Government of Sindh 2001 SCMR 1556 ref.

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

----S. 154---Lodging of F.I.R.---Cross-versions---Powers and duties of S.H.O.---When two distinct and opposite versions had come on record, wherein the manner of commission of the crime was not only different from each other, but on certain points all diametrically opposed each other, interest of justice, as well as fair investigation, demanded that a separate F.I.R. on the basis of application of informant should be recorded and investigated upon, so that both the versions could be placed before the court who would then be in a position to determine, and adjudicate upon as to which of the version was wholly or partly correct---Only the promptly lodged F.I.R., and both versions with all minute details, would enable the Trial Court to put both the versions in juxta-position, and after evaluating the credence, and assessing the worthiness of offence, the court could determine the question of aggression; and thereafter the guilt or innocence of accused---Virtually impossible it would be in case of one F.I.R. in respect of two divergent versions, because the task of paramount importance, such as the appreciation of evidence, could not be done with care and caution like 'sifting the grains from chaff'---If counter-version was merely restricted to a defence version, the second F.I.R. could not be recorded, but if a distinct and separate cognizable offence was disclosed, and no effective inquiry or the trial could be held without properly appreciating and considering the two versions, then another F.I.R. was to be recorded---S.H.O., in the present case had illegally refused to register the case; he was directed by High Court to dispose of application in accordance with law.

Masoom Khan Kakar and Syed Qaseem Agha for Petitioner.

Abdul Karim Malghani along with Muhammad Waris, Investigation Officer for the State.

Date of hearing: 13th December, 2013.

2014 P Cr. L J 1087

[Balochistan]

Before Muhammad Ejaz Swati, J

ABDUL REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.53 of 2013, decided on 4th April, 2014.

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

----S. 412---Dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---No evidence was produced by the prosecution that accused had knowledge that vehicle in question was stolen in commission of dacoity, which was necessary ingredient of S.412, P.P.C.---Prosecution itself brought on record certain documents which further negated the assertion of prosecution---Prosecution itself verified vehicle in question from Excise and Taxation Officer, and obtained verification letter---Plea taken by accused to the effect that he was bona fide purchaser of vehicle, was reflected from the evidence of the prosecution, as well---Accused though had not established the ownership of the vehicle, but through evidence, reasonable doubt appeared in the prosecution case, which made a dent; benefit of which must be extended to the accused---Document, wherein it was informed about the non-registration of vehicle in question in the computerized screen record of Excise and Taxation Office, could not be taken into consideration, as same had not been put to accused in his examination under S.342, Cr.P.C.---Prosecution had failed to prove its case against accused beyond reasonable doubt; and impugned judgment reflected misreading and non-reading of evidence, which in circumstances could not be sustained---Impugned judgment passed by the Trial Court was set aside; accused was acquitted of the charge, and being on bail, his bail bonds stood discharged.

Ashiq Hussain v. The State 1993 SCMR 417 ref.

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

----S. 342---Examination of accused---Section 342, Cr.P.C. mandate that all incriminating evidence was to be put to accused in his statement under that section; and the evidence which had not been confrontated to accused, conviction could not be based on such evidence.

Muhammad Shah v. The State 2010 SCMR 1009 ref.

Attaullah Langov for Appellant.

Sultan Mehmood, Special Prosecutor for the State.

Date of hearing: 28th March, 2014.

2014 P Cr. L J 1218

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

ABDUL HALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.317 of 2013, decided on 30th April, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Statement of vehicle driver, who was a material, important and essential witness, and whose statement provided base to prosecution case, was not recorded---Half-hearted attempt was made to procure the attendance of said witness, and no effective and coercive method by way of issuing bailable and non-bailable warrants, was applied by the Trial Court---Driver, while recording statement under S.161, Cr.P.C., did mention his cellphone numbers, which was reflective of the fact that said witness voluntarily recorded his statement under S.161, Cr.P.C.; and attempted to make sure his availability to Police---District Attorney, also failed to discharge his legal obligation and responsibility, as there was no occasion for him to drop said important witness---Prosecution could not leave such an important witness which went to the root of the case, and his statement was necessary for just decision of case---By dropping that important witness, the District Attorney appeared to have exceeded his authority---By permitting prosecution to drop that witness, the Trial Court had committed material irregularity, sufficient to vitiate the impugned judgment---Impugned judgment was set aside and case was remanded to the Trial Court with the direction to procure the attendance of the driver of the vehicle; after recording his statement and the statement of accused, Trial Court should decide the case on its own merits in accordance with law.

1998 PCr.LJ 2008; PLD 2001 Pesh. 152; 2004 YLR 3030; 1996 SCMR 67; 1995 SCMR 1345; 2003 SCMR 881; 1995 MLD 92; 2013 SCMR 302 and PLD 2012 SC 380 ref.

Munir Ahmed Mengal for Appellant.

Muhammad Yahya Baloch, D.P.-G. for the State.

Date of hearing: 15th April, 2014.

2014 P Cr. L J 1366

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

GHULAM QADIR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.87 of 2013, decided on 12th June, 2014.

Penal Code (XLV of 1860)---

----S. 302/34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd and terrorism---Appreciation of evidence---Vicarious liability---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---Fatal shots were fired upon deceased by absconding co-accused but it had established on record that accused persons shared common intention with absconding co-accused in causing murder of deceased on his refusal to pay Bhatta---Criminal act of murder was proved to be done in concert pursuant to pre-arranged plan and intention of accused persons could be inferred from their acts and conduct---Record did not show that accused persons disassociated themselves during commission of offence---Accused persons had common intention to murder the deceased and in such circumstances it was immaterial as to what part was played by whom---Law of vicarious liability is that those who stand together must fall together---Accused persons were saddled with vicarious liability for sharing common intention with absconding co-accused in committing murder of deceased---Prosecution proved its charge against accused persons beyond any shadow of doubt who having shared common intention with absconding co-accused were vicariously liable for committing murder of deceased---Appeal was dismissed in circumstances.

Zakir Khan v. The State 1995 SCMR 1793 ref.

Abdul Ghani Mashwani for Appellants.

Miss Tayyaba Altaf, Special Prosecutor, A.T.A. for the State.

Date of hearing: 8th May, 2014.

2014 P Cr. L J 1434

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

General (R) Syed PERVEZ MUSHARRAF---Petitioner

Versus

The STATE---Respondent

C. P. No.133 of 2014, decided on 29th April, 2014.

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

----S. 540-A---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Exemption from personal appearance in the court---Accused, who had been nominated as an accused in murder case, had sought exemption from his personal appearance in court---Trial Court disposed of application of accused vide impugned order, stating that challan (charge-sheet) had been submitted, but the trial could not commence as accused had never (once) appeared in court; that accused should appear in court so that the charge could be framed, and trial could commence; that accused was at liberty to file application for exemption at subsequent stage, or after framing of charge---Held, that the impugned order of the Trial Court did not suffer from any illegality which required correction; that in non-summons cases, accused must be present to answer the charge; that if exemption from personal attendance was sought, application in that respect must be considered by the Trial Court in terms of S.540-A, Cr.P.C., but after the charge had been answered personally by accused; that State was directed to ensure the safety of accused when he was taken to and from the court and whilst he was present in court.

State Bank of Pakistan v. Nassir Hussain Zaidi PLD 1988 Kar. 359 distinguished.

Aurangzeb v. Bilal 2002 PCr.LJ 947; Ali Yahyah v. State 1989 PCr.LJ 1652; Tahir Muhammad v. Arifa PLD 2003 Pesh. 123; DG-EPA v. Telenor Company 2011 CLD 1067 and Aurangzeb v. Mushtaq Ahmed PLD 2004 SC 160 ref.

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

----Ss. 221 & 222---Charge, framing of---Every charge was required to state the offence with which accused was charged; and particulars of the offence were required to be mentioned therein---Charge was to be read to accused; and if necessary, explained and accused was asked as to how he would plead, whereafter his plea of admission or denial of guilt was recorded, and if accused denied the charge, the trial would commence---Right to respond to a serious criminal charge was an important right of an accused, which should not be interfered with---If the attorney or lawyer was allowed to respond to a serious criminal charge, on behalf of accused, but acted contrary to his instruction it could give rise to difficult and complex legal and constitutional questions.

Muhammad Ilyas Siddiqui and Zeeshan Riaz Cheema for Petitioner.

Humayun Khan Tareen, Additional Advocate-General and Sultan Mehmood, Special Prosecutor, ATA for the State.

Date of hearing: 17th April, 2014.

2014 P Cr. L J 1464

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUSTAFA ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.145 of 2014, decided on 23rd May, 2014.

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

----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss.36 & 37---Penal Code (XLV of 1860), Ss.420, 506, 507 & 509---Violation of privacy of information, damage to information system, cheating, criminal intimidation and gesture or act intended to insult modesty of a woman---Bail, grant of---Further inquiry---Alternate sentence---Case not falling under prohibitory clause of S.497, Cr.P.C.---Accused had been in custody since 28-3-2014, investigation was completed and report under S.173, Cr.P.C. had been submitted before competent Court of law for trial---Effect---One of the factors for detaining accused, being necessity of custodial interrogation did not subsist anymore---Offences under Ss.420, 506, 507 & 509, P.P.C. did not fall within the purview of prohibitory clause as contained in S.497(1), Cr.P.C. and grant of bail in such like cases was a rule and refusal was an exception---One of the alternate sentences under Ss.36 & 37 of Electronic Transactions Ordinance, 2002, was fine only---Bail was allowed in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 rel.

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

----S. 497---Bail---Alternate sentence---Principle---When two alternate punishments of imprisonment or fine have been provided, in such like cases, bail has to be granted to accused on the principle that when two statutes provide two punishments then for the purpose of bail, lesser one is considered---Whether Trial Court after conclusion of trial inflicts sentence of imprisonment or fine, it is the sole discretion of Trial Court and the same cannot be ascertained at bail stage---Such fact alone makes case of accused as one of further inquiry as to which punishment is to be inflicted.

Chaudhry Mumtaz Yousaf for Applicant.

Shabir Shah, Standing counsel along with Khayyam Gul, S.-I., FIA for the State.

Date of hearing: 24th April, 2014.

2014 P Cr. L J 158

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

ABDUL HAKIM---Appellant

Versus

ABDUL WAHID and 2 others---Respondents

Criminal Appeal No.44 of 2011, decided on 28th February, 2013.

Penal Code (XLV of 1860)---

----Ss. 337-F(i), (iii) & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Causing Damiyah, Mutalahima, common intention---Appeal against acquittal---Appreciation of evidence---Presumption of innocence---Occurrence took place in the room of prosecution witness, but said witness was not brought before the court by the prosecution for recording his statement---Inference could be drawn that said witness was not willing to support the prosecution version---Doctor did not appear before the court for recording his statement---Statement of the Doctor was very much important and best evidence to prove the case of hurt and non-production of Doctor, would make the prosecution case doubtful---Many persons from the locality were present at the place of occurrence, but no one was cited as witness, and only the related witnesses had been cited---Enmity between the parties having been admitted, false involvement of accused person was very much there---Recovery witnesses negated the recoveries, which were brought before the court---Testimony of prosecution witnesses, though could not be discarded merely on the ground of relationship with the complainant; and conviction could be based on the statement of a solitary evidence, but in the present case, there were exaggerations in the statements of eye-witnesses; and their veracity on account of material contradictions in their statements---Independent corroboration was necessary in view of enmity with accused party---Prosecution was bound to prove the guilt of accused beyond reasonable doubt, however, when the testimony of the eye-witnesses would become doubtful, the prosecution case as a whole would become doubtful---Double presumption of innocence was available in case of acquittal one being on the general principle of law that an accused was innocent until and unless he was proved guilty; and while the other emanate from the order of acquittal passed in favour of the accused.

Abdul Rahim v. Muhammad Latif 1994 SCR 25 rel.

Mirza Tariq Mahmood for Appellant.

Ch. Muhammad Ilyas for Respondents.

A.A.-G. for the State.

2014 P Cr. L J 224

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

KHALID HUSSAIN---Petitioner

Versus

MUHAMMAD LAL and 6 others---Respondents

Revision Petition No.40 of 2012, decided on 14th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 205--- Penal Code (XLV of 1860), Ss.147, 148, 149, 448, 337-A(ii), 337-F(vi), 337-H(2) & 406---Rioting, common object, house-trespass, causing Shajjah-i-Mudihah, Munaqqilah, acting rashly or negligently, criminal breach of trust---Exemption from personal appearance before the court---Scope---Respondents/accused persons had been exempted by the Trial Court from their personal appearance before the court and allowed them to appear through their counsel---Validity---To exempt the personal presence, or refusal, was within the discretion of the Trial Court---If accused would pray for a permission to be represented through a counsel, the request should be generously granted, as there was no compelling legal necessity to force an accused to attend in person, instead of being represented through a counsel---By granting such permission, unnecessary over-crowding in the court, humiliation, and the forced companionship of hardened criminals, leading to many sufferings, could be conveniently prevented---Impugned order of the Trial Court, in circumstances, was quite in accordance with law, which was allowed to stand.

Ch. Zaheer-ud-Din for Petitioner.

Abdul Aziz Ratalvi for Respondents.

A.A.-G. for the State.

2014 P Cr. L J 414

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MOBEEN LIAQUAT and another---Petitioners

Versus

The STATE through Assistant Advocate-General and others---Respondents

Criminal Revision Petitions Nos.83 and 13 of 2013, decided on 23rd May, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 34, 147, 148 & 149---Pakistan Arms Act (XX of 1965), S.13---Qatl-e-amd, common intention, rioting, unlawful assembly and common object---Bail, grant of---Further inquiry---Revision petition---Accused and co-accused/non-petitioners, applied for bail and the Trial Court refused bail to the extent of accused, while same was allowed to co-accused through impugned orders---Nothing was on record showing that anybody had witnessed accused while forcibly taking away the deceased from the house of co-accused; and going towards the place of occurrence---No other substantial evidence established involvement of accused connecting him with the crime---Prima facie, case against accused was that of further probe---Co-accused were not present at the spot where the offence of murder was committed---Participation of co-accused in the occurrence was also a matter of further probe---Co-accused were rightly allowed bail by the court below---Accused was granted bail in circumstances.

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

----S. 149---Scope of S.149, P.P.C.---Member of unlawful assembly committing offence in prosecution of common object---Section 149, P.P.C. did not create a new offence, but dealt with the crime committed in the prosecution of common object---To establish the allegation of committing the offence under S.149, P.P.C., it must be proved that accused was a member of an unlawful assembly; and the offence was committed in the prosecution of common object---To be a member of an unlawful assembly having common object, was the necessary ingredient to bring the case of accused within the purview of S.149, P.P.C.

Ch. Khalid Rashid for Petitioner No.1.

Abdul Hamid for Non-Petitioners.

Assistant Advocate-General for the State.

Muhammad Nadeem Khan for Akbar Ali Petitioner/ Complainant.

Date of hearing: 23rd May, 2013.

2014 P Cr. L J 740

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

SHERAZ AHMAD and others---Petitioners

Versus

YASEEN and others---Respondents

Criminal Revision Petitions Nos.389 and 406 of 2013, decided on 30th January, 2014.

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

----S. 497---Bail---Benefit of doubt---Deep scrutiny of evidence at bail stage---Such scrutiny or minute study of the evidence on the record to reach a conclusion; was not permissible whether in the given circumstances, accused were entitled to the concession of bail or not---Benefit of slightest doubt arising in the case, would go in favour of accused even at bail stage.

2004 SCR 36 rel.

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

----S. 497(5)---Bail, cancellation of---Principles---Case of cancellation of bail was to be viewed from altogether a different angle than that of the question of allowing bail---Once bail allowed by the lower court, then it needed some strong and cogent reasons for its cancellation---Mere heinousness or gravity of offence, itself was no ground for the refusal of the bail---Bail should not be withheld as punishment.

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

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Bail, grant of---Accused persons, after registration of the case against them on 17-10-2013, were behind the bars, whereas the investigation had been completed, and challan had also been submitted before the Trial Court---Accused, in circumstances, were no more required for investigation purpose; and, if bail already granted was cancelled, and accused were sent behind the bars no price for the agony, they would suffer would be possible, if they were acquitted of the charge---Bail could not be cancelled as a punishment---No useful purpose, in the present case, would be served, if the bail was cancelled or accused were kept in confinement---Trial Court having not exercised its discretion properly while disallowing bail to accused persons impugned order of the Trial Court, was set aside, in circumstances.

Muhammad Riaz v. Muhammad Sabir and 12 others 2011 SCR 126 rel.

Shahid Ali Awan for Petitioners-Respondents.

Shaikh Mushtaq Ahmad for Respondents-Petitioners.

Tariq Alam, Assistant A.-G. for the State.

2014 P Cr. L J 897

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

Mst. FARZANA SIDDIQUE---Petitioner

Versus

The STATE through Advocate-General Azad Jammu and Kashmir and 11 others---Respondents

Criminal Miscellaneous Petition No.105 of 2013, decided on 30th January, 2014.

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

----S. 561-A--- Inherent jurisdiction of High Court, exercise of---Scope---Inherent jurisdiction of High Court under S.561-A, Cr.P.C., was neither alternative, nor additional in its character, and 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---Said provision should not be used to obstruct or divert the ordinary course of criminal procedure---Section 561-A, Cr.P.C., had conferred upon High Court inherent powers to make such order as could be necessary to give effect to any order under Cr.P.C., or to prevent abuse of process of any court; or otherwise to secure the ends of justice---Such powers were very wide, and could be exercised by High Court at any time---High Court, in exceptional cases could exercise its power under S.561-A, Cr.P.C. without waiting for the Trial Court to pass orders under S.249-A or 265-K, Cr.P.C.; if the facts of the case so warranted to prevent abuse of the process of any court, or otherwise to secure the ends of justice.

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

----S. 561-A---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss.10, 11, 16 & 19---Zina or zina-bil-jabr liable to Tazir, kidnapping, abducting or inducing woman to compel for marriage etc., enticing or taking away or detaining with criminal intent a woman---Quashing of F.I.R., petition for---Petitioner, who was sui juris lady, got recorded her statement before the court, with regard to her Nikah, wherein she stated that nobody had abducted her; and she had solemnized Nikah with respondent according to her consent and free-will---Both the petitioner and respondent being sui juris, had lawfully married each other, offences as alleged in the F.I.R., in circumstances, were not made out---Continuance of investigation, under the circumstances against the spouses, could amount to unnecessary harassment--- F.I.R., was quashed, in circumstances.

Syed Azad Hussain Shah v. Syeda Saba Asghar and others Civil P.L.A. No.86 of 2012, decided on 19-6-2012 and Shah Muhammad v. Muhammad Younis and others Civil Appeal No.12 of 2011, decided on 30-7-2013 ref.

(c) Muslims Family Laws Ordinance (VIII of 1961)---

----Ss. 5 & 6---Nikah---Validity---Where there were two claimants of Nikah of a woman, the statement of the woman was of vital importance to decide the controversy between the parties---Consent of adult, sane couple, was sufficient for 'Nikah'.

Azad Tariq and Ch. Muhammad Riaz for Petitioner.

Ch. Ghulam Nabi for Respondents.

2014 P Cr. L J 33

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD SIDDIQUE KHAN---Appellant

Versus

The STATE through Advocate-General Azad Jammu and Kashmir, Muzaffarabad---Respondent

Criminal Appeal No.2 of 2010, decided on 11th February, 2012.

(On appeal from the judgment of the Shariat Court dated 3-2-2010 in Criminal Appeal No.1 of 2005.)

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Procedure---Accused for whom appellant stood surety, had been regularly appearing before the Trial Court , but in spite of lapse of 9 years the trial could not conclude---When it came to the knowledge of the surety that accused had gone to Pakistan for treatment, surety due to apprehension that accused could abscond, filed an application for withdrawal of surety bond---Trial Court did not pass any order on that application and simply placed the same on the record---When accused did not turn up on the date fixed for hearing, Trial Court forfeited the surety bond---Validity---Surety (appellant) had moved application for withdrawal of surety bond well before the date of hearing---No order was passed on said application and the Trial Court straightway passed order of forfeiture of surety bond and directed the surety to deposit forfeited amount---Impugned order should have recorded the reasons while forfeiting the surety bond, and after forfeiture of the same, surety must have been served with a show-cause notice that why the forfeited amount could not be realized from him---Section 514, Cr.P.C. provided that it must be proved to the satisfaction of the court that the bond had been forfeited and it was only after such proof that the surety could be called upon to show-cause as to why the penalty should not be levied---Proof should be a prima facie proof based on evidence that bond had been forfeited---Non-issuance of notice in absence of prima facie proof would render the proceedings liable to be set aside---Trial Court had passed order in a hasty manner and without observing the relevant provisions of law and without following the procedure provided in S.514, Cr.P.C.---Judgment of the court being based on presumptions, same was not sustainable in the eye of law---Impugned orders were set aside and case was remanded to the Trial Court for decision afresh in accordance with law after affording reasonable opportunity to the surety.

Dildar and another v. The State PLD 1963 SC 47 and Murtaza Shah and another v. The State PLD 1986 Pesh. 43 ref.

Sanwan and another v. The State PLD 1965 (W.P.) Kar. 516; Adho Khan v. The State 2001 PCr.LJ 35; Thakur Kishan Narayan Singh and others v. Emperor AIR 1922 Patna 242; Shaukat Ali and another v. The State 1980 PCr.LJ 718; Sub-Major Fazal Ellahi v. The State PLD 1978 SC (AJ&K) 80 and Raja Faizullah Khan and another v. Raubkar Adalat 1992 PCr.LJ 1649 rel.

Asghar Ali Malik, Advocate for Appellant.

Raja Ghazanfar Ali, Advocate-General assisted by M.R. Khan, Additional Advocate-General for the State.

Date of hearing: 10th January, 2012.

2014 P Cr. L J 108

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

ABRAIZ BABU and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision Petition No.336 of 2012, decided on 19th February, 2013.

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

----S. 540---Interpretation and scope of S.540, Cr.P.C.---Section 540, Cr.P.C., consisted of two parts; the first part gives power to the court to summon any person as a witness or examine any person in attendance, though not summoned as a witness, whereas the second part of said section was mandatory to meet the ends of justice---Section 540, Cr.P.C. had given ample powers to a court to call or examine any important witness as court witness at any stage; and at any time during the trial---Those discretionary powers, had to be exercised with due care and caution; and in a judicious manner in the cases where Trial Court would feel it necessary to meet the ends of justice, but the court could not exercise those powers to advance the cause of prosecution or that of the defence---Object of S.540, Cr.P.C. was to advance the interest of justice and not to give benefit to any of the parties at the trial to fill up lacunas---Court could call and examine any witness for recording evidence during the trial at any stage of the trial, even after closure of prosecution evidence, and could allow the application, if facts of the case so warranted in order to do complete justice, because primary function of the court was to reach the just conclusion; and find out the truth, but neither the prosecution nor the defence could be allowed to produce additional evidence to fill up the lacunas under S.540, Cr.P.C.

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

----S. 540---Penal Code (XLV of 1860), Ss.302, 34, 109 & 114---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, common intention, abetment, possessing unlicensed arms---Summoning material witness or examining person present---Out of 22 witnesses cited by the prosecution, evidence of 21 witnesses had been recorded and only evidence of Investigation Officer was yet to be recorded, meanwhile, complainant moved an application under S.540, Cr.P.C. before Trial Court through which he wanted to get recorded evidence of seven more persons who were present at the time of incident at the alleged place of occurrence---After more than 20 months, which was a long time, the prosecution moved an application under S.540, Cr.P.C. before the Trial Court without any justification---Prosecution, prior to the application under S.540, Cr.P.C. never considered the witnesses mentioned in the application as important witnesses, nor those witnesses themselves appeared before Police during investigation, or court for recording of their evidence---Attitude of the complainant for citing them as witnesses also appeared to be lukewarm, because of his long silence---Complainant remained silent for about more than 20 months after commencement of the trial; and such delay could not be ignored in circumstances---Trial Court had failed to appreciate S.540, Cr.P.C. in its true perspective and allowed seven additional witnesses to be examined---Impugned order was set aside, in circumstances.

Mst. Safdar Jan v. The State and another 1997 PCr.LJ 1553 rel.

Muhammad Boota v. The State 1997 PCr.LJ 628; Ali Nawaz and 8 others' case 1997 MLD 2221; Mazhar Hussain v. The State 2002 PCr.LJ 614 and Amir Bakshs v. Additional Sessions Judge Multan 2007 PCr.LJ 642 ref.

Barrister Adnan Nawaz for Petitioners.

Manzoor Hussain Raja for the Complainant.

Nemo for the State.

2014 P Cr. L J 312

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

CRIMINAL APPEAL NO.30 OF 2009

(On appeal from the judgment of the Shariat Court dated 16-2-2007 in Criminal Appeal No.73 of 2006.)

IRFAN HUSSAIN---Appellant

Versus

ALLAH DIN and another---Respondents

CRIMINAL APPEAL NO.32 OF 2009

(On appeal from the judgment of the Shariat Court dated 16-2-2007 in Criminal Appeal No.69 of 2006.)

ALLAH DIN---Appellant

Versus

IRFAN HUSSAIN and another---Respondents

Criminal Appeals Nos. 30 and 32 of 2009, decided on 16th March, 2012.

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

----S. 302(b)---Qatl-e-amd---Life imprisonment awarded to accused by the Trial Court having been maintained by Shariat Court, the complainant had filed appeal before the Supreme Court for enhancement of sentence---Validity---Court under clause (b) of S.302, P.P.C. was empowered to punish accused with death or imprisonment for life as 'Tazir' having regard to facts and circumstances of the case---Reasons advanced by the Trial Court in its judgment that in the light of peculiar facts and circumstances of the case, the imprisonment for life as 'Tazir' was an adequate punishment, were satisfactory and found support from settled law---Appeal filed by the complainant for enhancement of the awarded punishment to accused was not maintainable, which was dismissed.

Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27 rel.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, possessing unlicensed arms---Appreciation of evidence---Presence of three direct eye-witnesses, who were sons and widow of the deceased was natural---Defence had failed to make out any dent in the prosecution story during the cross-examination of said witnesses or to make their presence on spot doubtful---Mere relationship of said witnesses with the deceased, was no ground to discard the evidence of the prosecution witnesses---Prosecution story appearing to be simple and natural, objection of the counsel for accused that prosecution story was not plausible, was without any substance---Most stressed point that no blood was recovered on the spot of occurrence, appeared to be without substance, because evidence had clearly proved that a huge quantity of blood was found in the abdominal cavity---Mere being a tractor driver, would not mean that presence of person at the place of occurrence at the relevant time was impossible, nor it made status as of a chance witness---Contention of counsel for accused that motive had not been proved, was also of no importance---Defence had failed to point out any major discrepancy, which could make the evidence doubtful or unreliable---Evidence showed that the persons of locality had reached on the spot after incident, none of them was a direct eye-witness of the incident---Defence had failed to point out any material infirmity in the impugned judgment, or create any serious doubt in the prosecution story---Appeal was dismissed by the Supreme Court.

Muhammad Ramzan's case 1997 PCr.LJ 1522; 1997 PCr.LJ 1539; PLD 1963 SC 17; 2007 SCR 332 and PLD 2007 SC(AJ&K) 27 ref.

Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 and Noor Muhammad's case 1992 SCR 1 rel.

(c) Criminal Trial---

----Appreciation of evidence---Relationship of prosecution witnesses with deceased---Mere relationship was no ground for discarding the evidence of witnesses---Party could rope innocent persons in a crime along with a real culprit, but it was not natural that a party would leave the real culprit and instead falsely implicate innocent persons.

Abdul Majeed Mallick, Advocate for Appellant (in Criminal Appeal No.30 of 2009).

Khalid Rasheed Chaudhary, Advocate for Respondents (in Criminal Appeal No.30 of 2009).

Advocate-General for the State (in Criminal Appeal No.30 of 2009).

Khalid Rasheed Chaudhary, Advocate for Appellant (in Criminal Appeal No.32 of 2009).

Abdul Majeed Mallick, Advocate for Respondent (in Criminal Appeal No.32 of 2009).

Advocate-General for the State (in Criminal Appeal No.32 of 2009).

Date of hearing: 21st February, 2012.

2014 P Cr. L J 1512

[Supreme Court (AJ&K)]

Present Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

ZAFFAR MEHMOOD---Petitioner

Versus

MUZAFFAR and another---Respondents

Criminal Revision Petition No.5 of 2012, decided on 10th January, 2014.

(On revision from the order of the Shariat Court dated 9-5-2012 in Criminal Revision Petition No.422 of 2011)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), S.25---Penal Code (XLV of 1860), Ss.302, 341, 34, 109, 147, 148 & 149---Pakistan Arms Act (XX of 1965), S.13---Qatl-e-amd, wrongful restraint, common intention, abetment, rioting, common object, possessing unlicensed arms---Bail, cancellation of---Principles---No act of firing was attributed to accused and only his presence was shown at the place of occurrence---Although a .30 bore pistol was shown to have been recovered from accused, but crime empties recovered from the scene of occurrence, did not match with the pistol, recovered---Said recovery, at the bail stage, could not be considered as corroboratory piece of evidence---At bail stage only tentative assessment of the record i.e. F.I.R., statements of the witnesses recorded under S.161, Cr.P.C., the Medico-legal Report and defence plea, raised by accused, had to be considered---Deeper appreciation of evidence , was not permissible at the stage of bail---Supreme Court (AJ&K), normally would not interfere with the discretion exercised by the Shariat Court, unless the discretion was found capricious, against the settled norms governing the bail matter and against the record---Question of cancellation of bail, would not stand on the same pedestral as the rules governing the grant of bail, were different to the one applicable for cancellation of bail---Once the bail was granted by a court of competent jurisdiction, very strong reasons were required for its cancellation---Mere argument, without any record, that accused was tampering with the evidence, could not be believed, bail could not be cancelled on said ground---Order passed by the Shariat Court, having been passed in a legal manner, warranted no interference by the Supreme Court.

Muhammad Faryad and another v. The State 1989 PCr.LJ 214; State v. Muhammad Bahram 1994 SCR 272; Aziz Bi v. Fazal Hussain and another 2007 SCR 138 and 1999 SCR 211(sic.) ref.

Barrister Humayun Nawaz Khan for Petitioner.

Sardar Muhammad Suleman Khan Advocate for Respondent.

Ch. Shoukat Aziz, Additional Advocate-General for the State.

Date of hearing: 10th February, 2014.