PCRLJ 2015 Judgments

2015 P Cr. L J 53

[Federal Shariat Court]

Before Sardar Muhammad Raza, C.J.

MUHAMMAD YOUSAF---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.3/I of 2014, decided on 5th September, 2014.

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

----S. 10(2)---Zina liable to Tazir---Appreciation of evidence---Benefit of doubt---Incident being a night occurrence, existence of light was never claimed, either in the F.I.R., or in the statement under S.161, Cr.P.C. of the witnesses, but it was brought on record during trial by clear improvement---Such improvement was made to prove the identification of the culprits at night, which was an assertion afterthought---No notable person of the village was examined out of two persons cited as prosecution witnesses, one was abandoned, while other who was examined, was proved to be procured witness---Alleged occurrence, appeared nothing beyond a cock and bull story, as evidence produced was highly unreasonable and far fetched---F.I.R. in the case was lodged after 6/7 days, without reasonable explanation for such delay---As to how and why the Police reached the spot early in the morning was still a mystry--- Occurrence had not taken place in the manner in which it was alleged--- Medical examination of alleged victim was conducted seven days after the occurrence---Vagina of the alleged victim having admitted two fingers easily, an unmarried girl of sixteen years of age, appeared to be not of a fair virtue---Strong corroborative evidence, which was required to connect accused with the commission of zina, was absent in the case---No D.N.A. test, which was necessary to determine the semen grouping and matching of swabs with the sperms of accused, was conducted in the case---Accused, in circumstances, could not be linked with the commission of offence---Prosecution having failed to bring home charge against accused, he was entitled to benefit of doubt---Accused, was acquitted, and was directed to be released, in circumstances.

Amanullah v. The State PLD 2009 SC 542 ref.

Khawaja Shahid Rasool Siddique for Appellant.

Altaf Hayat Khan Langra for the Complainant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 21st July, 2014.

2015 P Cr. L J 203

[Federal Shariat Court]

Before Sardar Muhammad Raza, C.J., Allama Dr. Fida Muhammad Khan and Riaz Ahmad Khan, JJ

AZAD---Appellant

Versus

AKRAM and 3 others---Respondents

Criminal Appeal No.65/I of 2010, decided on 9th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 452 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.15 & 17(4)---Criminal Procedure Code (V of 1898), S.417(2-A)---Constitution of Pakistan, Arts.203-D & 203-DD---Qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint, common intention, haraabah---Appeal against acquittal---Jurisdiction of Federal Shariat Court---Accused, in the F.I.R., were not charged at all for the commission of either theft or extortion, so as to bring the offence within the ambit of "Haraabah" with murder or dacoity with murder---Case was one of simple trespass and murder for which the charge should have been framed under Ss.302, 452 & 34, P.P.C.---Charge under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was illegal and void---Jurisdiction of Federal Shariat Court, was invoked on the ground which never existed, thus was void altogether---Court which assumed appellate jurisdiction, had the authority to hold, with application of mind, that the charge had been framed, either rightly or wrongly---If the court had the jurisdiction to hold that the charge was rightly framed, it also had the jurisdiction to hold that it had been wrongly framed---Case fell under Ss.302, 452 & 34, P.P.C., therefore charge was wrongly framed under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Federal Shariat Court had no jurisdiction to decide appeal in circumstances.

Saliheen Mughal for Appellant.

Wajio-ur-Rehman Khan for Respondents.

Mian Shujaat Shah, Assistant Advocate-General, Khyber Pakhtunkhwa for the State.

Date of hearing: 9th October, 2014.

2015 P Cr. L J 305

[Federal Shariat Court]

Before Sardar Muhammad Raza, C.J.

MUHAMMAD AMER IQBAL---Petitioner

Versus

Mst. NASEEM AKHTAR and 2 others---Respondents

Criminal Revision No.32/L of 2009, decided on 28th October, 2014.

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

----Ss. 5, 6(2) [as amended by Protection of Women (Criminal Laws Amendment) Act (VI of 2006)] & S. 7---Criminal Procedure Code (V of 1898), S.203-B---Offence of Qazf---Registration of case---Accused, who was charged for commission of zina with maid servant of complainant, was proceeded against and was acquitted by the Trial Court---Application filed by acquitted accused for trying the complainant party for offence of qazf, having been dismissed by the Trial Court, accused filed revision petition before Federal Shariat Court---Application of acquitted accused was dismissed on the ground that in view of latest amendment in S.6 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, cognizance of offence of qazf, could only be taken by the Trial Court itself, when it acquitted accused, and would proceed to pass sentence there and then---Validity---Amendment in the Ordinance had no nexus at all with the taking and manner of cognizance---Section 203-B, Cr.P.C. was the only section that dealt with the matter and manner of cognizance in a qazf case, whereas amended S.6 of the Ordinance, dealt with proof of qazf liable to hadd---Court was empowered to pass sentence there and then, however, if would fail to do so, it would be act of the court, whereby the right of anybody affected, could not be curtailed--- Cognizance of case of qazf, would be taken only on a complaint lodged in a court of competent jurisdiction; unless, the court itself had taken cognizance under amended S.6 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---Filing of application by acquitted accused under S.203-B, Cr.P.C., was in order, and the Trial Court was not justified to dismiss the same, by mixing up "the matter and manner of cognizance", with the "proof or otherwise of an offence"---Impugned order was set aside, with direction to the Trial Court to proceed under S.203-B, Cr.P.C.

Dr. Muhammad Akmal Saleemi for Petitioner.

Rao Nisar Ahmed for Respondents.

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

Date of hearing:28th October, 2014.

2015 P Cr. L J 895

[Federal Shariat Court]

Before Sheikh Najam ul Hasan, Riaz Ahmad Khan and Zahoor Ahmed Shahwani, JJ

NADEEM AHMED and others---Appellants

versus

The STATE and others---Respondents

Jail Criminal Appeals Nos.15/I, 16/I, 17/I, 18/I, 19/I and Criminal Revision No.2/Q of 2014, decided on 17th February, 2015.

Penal Code (XLV of 1860)---

----S. 396---Criminal Procedure Code (V of 1898), S. 164---Dacoity with murder--- Appreciation of evidence--- Confession--- Sentence, enhancement of---No direct ocular evidence of the occurrence was available and case of prosecution was based on circumstantial evidence---Confession recorded by Judicial Magistrate, contained certificate of the Magistrate to the effect that confession was true and voluntary---Confessional statement, though had been retracted, yet was corroborated on all material particulars, and the same was sufficient for conviction, in view of recovery of weapon of offence, mobile phone of the deceased; computerized weighbridge receipts/bill from accused persons; and recovery of ropes, plastic pipe, blood-stained shirt, blankets and towel from the place of occurrence---Delay of three days in recording of confessional statement, could not be considered, because confessional statement was found true, voluntary, and not an outcome of duress and coercion, and the Trial Court had rightly believed the same, and took the same into consideration against accused---Nothing was on record to suggest that prosecution witness had deposed falsely against accused on account of any enmity or animosity---Statement of witness was corroborated by confession---Prosecution had been able to substantiate the charge against the accused persons beyond reasonable doubt by means of connecting all the links of the chain, in the shape of strong circumstantial evidence---Defence plea, adopted by accused persons, seemed to be afterthought and could not be relied upon---Accused persons had committed the offence punishable under S.396, P.P.C., as the number of accused was more than four---One of the accused persons, remained along with other accused persons from the beginning to the end and also helped the said accused persons in throwing away/disposing of the deceased in bushes after tying the body---Said accused was not entitled for any leniency/lesser punishment---In view of role, played by the accused towards the commission of offence, his sentence was enhanced from ten years' R.I. to imprisonment for life, with benefit of S.382-B, Cr.P.C.---With modification to the extent of sentence of said accused, impugned judgment passed by the Trial Court was upheld, and sentences and conviction of the accused persons, were maintained.

Wazir Khan v. The State 1989 SCMR 446; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muslim Shah v. The State PLD 2005 SC 168 and Sher Did and others v. The State and others 2003 YLR 110 ref.

Khuda Bakhsh v. The State 2004 SCMR 331 and Muslim Shah v. The State PLD 2005 SC 168 rel.

Javed Aziz Sindhu for Appellants (in Jail Criminal Appeals).

Mazullah Barkandi for Petitioner/Complainant (in Criminal Revision No.2/Q of 2014).

Miss Ribina Butt on behalf of A.-G. Balochistan for the State.

Date of hearing: 15th January, 2015.

2015 P Cr. L J 1192

[Federal Shariat Court]

Before Riaz Ahmed Khan, C.J., Sh. Najam ul Hasan and Zahoor Ahmed Shahwani, JJ

SAJID and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeal No.22-I, Criminal Revision No. 3-I and Criminal Murder Reference No.2-I of 2013, decided on 5th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 34 & 337-A(iv)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Munaqqilah, common intention---Haraabah---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Eye-witness, whose name was mentioned in the promptly lodged FIR, correctly identified two accused persons in identification parade---One of said accused persons got recovered weapons of offence used in the occurrence---Two crime empties of .12 bore gun were recovered from the Jeep where deceased was sitting---Both accused persons, attempted murderous assault on injured prosecution witness, both of them having fired two shots each, both were jointly and severally responsible for the crime---Initially, the charge was framed for the offence of "Haraabah", but robbery was not proved, so both accused persons were only convicted for murder, attempt to commit murder and causing injuries to the prosecution witnesses; and were not convicted for robbery---No appeal in respect of their acquittal for 'Haraabah' or 'robbery', had been filed by the complainant side or the State---In absence of any kind of evidence, specifying accused responsible for causing injury to injured witness, no one could be convicted for causing such injury to injured witness---Conviction of accused persons under S.337-A(iv), P.P.C., for causing injury to injured prosecution witness, was set aside while extending benefit of doubt---No role in respect of murder and murder assault had been assigned to third accused by the witnesses---As per confessional statement of co-accused, third accused was empty handed at the time of occurrence; it could not be assumed that said third accused was having common intention with co-accused in respect of murder of the deceased, and murderous assault on injured prosecution witness---Prosecution having remained unable to prove any charge against said (third) accused beyond reasonable doubt, he was acquitted by extending him benefit of doubt; his appeal was accepted, and he was released---Presence of both prosecution witnesses at the time of occurrence, was established beyond reasonable doubt and they had no reason to falsely implicate other two accused persons, their statement was worth reliance---Identification parade in respect of involvement and participation of said two accused persons, was reliable---Inculpatory judicial confession of accused, provided sufficient support to prosecution case---Said two accused persons, were rightly convicted under S. 302(b), 324, 34, P.P.C.---Convictions of said two accused in that respect, were upheld, however, as it was not established, as to who amongst those two accused persons, had caused fatal injury to the deceased, extending benefit of doubt, their sentence under S.302(b), P.P.C., was converted into life imprisonment---All the sentences of imprisonment, would run concurrently---Benefit of S.382-B, Cr.P.C., was also extended to accused persons.

Masood Azhar for Appellants (in Criminal Appeal No. 22-I of 2013).

Syed Yasir Shabeer for Respondents.

Arshad Ahmed, A.A.-G., Khyber Pakhtunkhwa for the State.

Syed Yasir Shabeer for Petitioner (in Criminal Revision No. 3-I of 2013).

Date of hearing: 1-4-2015

2015 P Cr. L J 75

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, J

LOO KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 35 of 2014, decided on 26th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Quashing of order/judgment, petition for---Petitioner had sought quashing of order/judgment of the Trial Court, whereby, he who was discharged by Investigating Authorities under S.169, Cr.P.C., was directed to be summoned to face the trial---Alleged complainant, during the course of recording of his statements, disowned his first information report; stating that at the time of occurrence, he was not even present at the place of occurrence, rather was in another city---Complainant further stated that on his reaching the village, his relatives told him that they had registered F.I.R. on his behalf; and asked him to admit the report; and on the basis of his said statement, original F.I.R. lodger, was declared hostile---Reliance, in said state of affairs, on the eye-witness named by a hostile witness/original F.I.R. lodger, who did not own the contents of the same; and even his presence in the village concerned, during the commission of the offence, was highly unsafe and unwarranted---Even, if statements of alleged two eye-witnesses, named in the F.I.R., were relied upon even then there was no piece of corroborative evidence available against the petitioner---Prosecution had already recovered a rifle from co-accused, who had subsequently been exonerated from the charge under S.302, P.P.C.---No purpose would be achieved by making the petitioner to stand and to face the charges of murder---Impugned order/judgment, was set aside, in circumstances.

Malik Haq Nawaz for Petitioner.

Assistant Advocate-General for the State.

2015 P Cr. L J 223

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, J

ABDUL MANAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 11 of 2014, decided on 9th September, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Keeping unlicensed weapon---Appreciation of evidence---Benefit of doubt---Alleged recovery of weapon had been effected from a premises, which was neither owned nor resided by accused---Sole witness stated that recovered article (weapon) was brought in his presence and handed over to the Police by the owner of the house as against the statement of Police Officer who effected the recovery---Such material contradiction made the case of recovery highly doubtful---Benefit of doubt should go to accused---Impugned order was set aside and accused was acquitted from charge under S.13 of Pakistan Arms Ordinance, 1965, in circumstances.

Malik Haq Nawaz for Appellant.

Assistant Advocate-General for the State.

2015 P Cr. L J 281

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J.

Mir SHAKEEL UR REHMAN through Attorney---Petitioner

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Secretary and another---Respondents

Criminal Miscellaneous No.263 of 2014, decided on 5th November, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 526 & 561-A---Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32---Transfer of case to other court---Quashing of proceedings, petition for---Petitioner fugitive from law---Effect---Contention of petitioner was that since Trial Judge was in a hurry in holding the trial against the petitioner by violating the mandatory provisions of law, petitioner, therefore, lacked confidence in the Trial Judge---Petition was opposed with the contentions that petitioner being fugitive from law, could not seek any relief from the court and that petition filed by the counsel appointed by alleged general attorney of the petitioner, could be considered, unless he would surrender himself before the court of law---Validity---Petitioner was absconder, and trial against him was in progress, and petitioner was represented by the counsel appointed by the court---Petition for transfer of case and quashing the proceedings had been filed by counsel on the authority given by alleged general attorney of the petitioner---Such petition on behalf of the petitioner, could not be held to be "petition" by which relief could be granted to petitioner---Fugitive from law could not be awarded relief, unless he surrendered before the court---Petitioner, failed to point out any ground requiring transfer of case from the court of Trial Judge to any other court---Expeditious trial in cases of terrorism, was the requirement of special law and the concept of said law was nothing, except the disposal of cases on day to day basis and appeal decided within a specific time-frame---Adverse opinion against the Trial Judge, in circumstances, could not be taken---Petition was dismissed, and parties were directed to appear before the Trial Court on date already fixed for further proceedings, in circumstances.

PLD 1973 SC 327; PLD 2001 Kar. 14; Muhammad Sabir Roshan v. State 2000 PCr.LJ 1195; PLD 2002 Lah. 74; 1999 P.Cr.LJ 1381 and 2012 PCr.LJ 1337 ref.

Malik Kifayat ur Rehman and Muhammad Abdul Azeem for Petitioner.

A.A.-G. for the State.

Malik Haq Nawaz for the Complainant.

2015 P Cr. L J 433

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Yar Muhammad, J.

SHER SULAIMAN---Petitioner

Versus

DSP BABAR KHAN and 2 others---Respondents

Criminal Revision No. 9 of 2012, decided on 15th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Criminal Procedure Code (V of 1898), Ss.132 & 200---Qatl-i-amd, attempt to commit qatl-i-amd, act of terrorism---Appreciation of evidence---Private complaint---Dismissal of---Protection against prosecution---Private complaint filed by petitioner/complainant was dismissed by Special Court on the grounds that it was not supported by sanction as required by S.132, Cr.P.C. and that offence alleged against accused persons/respondents, did not fall under Ss.6 & 7 of Anti-Terrorism Act, 1997---Validity---People whose relief cheques were not cashed had gathered in the mob to protest---Accused persons, who were Police Officials, for dispersing the mob of protestors opened fire, and two persons died and many others injured---Contention of accused persons was that incident took place under compelling circumstances because the mob was going to destroy public property in large scale; and fire was opened in good faith by them to abstain the mob from taking the law in hand---Validity---Version of accused persons that firing was opened under compelling situation, was not enough to overlook the murder of two persons---Justice demanded that truth should be found out so that no public servant dare to act going beyond his authority---Section 132, Cr.P.C. was a protection against prosecution; and to take benefit under said section, accused persons had to prove that the act complained of was done under circumstances mentioned in that section---Accused persons must place the material and show circumstances before the court justifying that mob was unlawful and the acts they did were purported to have been done while dispersing the mob---Complaint was dismissed on the ground that same did not fall within the scope of S. 6 of Anti-Terrorism Act, 1997---Complainant failed to prove that act done by accused persons fell within ambit of S. 6 of Anti-Terrorism Act, 1997, but when court concluded that S. 6 was not attracted to the matter and complaint was not triable by the Special Judge, then court was required to send the complaint to the court of ordinary jurisdiction, which could give finding regarding applicability or non-application of S. 132, Cr.P.C.---Revision was converted into appeal and was partially allowed by Chief Court---Impugned order of the Special Court was set aside, with the observation that S.6 of Anti-Terrorism Act, 1997 was not attracted to the matter---Special Court was directed to transfer the complaint to Additional Sessions Judge concerned for its disposal in accordance with law, in circumstances.

PLD 1992 SC 72 ref.

Malik Haq Nawaz for Petitioner.

Amjad Hussain for Respondents Nos.1 and 2.

Assistant Advocate-General for Respondent No.3.

2015 P Cr. L J 753

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

SAMREEN and another---Petitioners

versus

The STATE---Respondent

Criminal Revision No. 10 of 2014, decided on 12th December, 2014.

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

----S. 265-K---Penal Code (XLV of 1860), Ss. 302, 34 & 311---Qatl-i-amd, common intention, tazir after waiving or compounding of right of qisas in qatl-i-amd---Application for acquittal---Complainant, who was father of accused, was not eye-witness of the occurrence and he had disowned the FIR allegedly lodged by him in his statement before court---FIR which was the foundation of criminal case; if the same was disowned by its lodger, nothing remained there in the case---Eye-witnesses also negated themselves to be witnesses of the occurrence---Other private prosecution witnesses did not support the prosecution version---Case, despite being without any evidence, Trial Court ignored that aspect while disposing of application of accused persons, filed under S.265-K, Cr.P.C.---Compromise effected between accused persons, and the legal representatives of the deceased, was not such that accused could have confessed about the guilt, or had paid any compensation to the legal representatives---Accused persons had been released on bail merely on making a statement by the legal representatives of the deceased lady that they had pardoned accused persons---Observation made in the bail granting order could not be used by the parties for conviction or acquittal of accused---Accused was to be treated as innocent, unless it was proved on the basis of best possible evidence that he was connected with the offence alleged to have been committed by him, and as such deserved to be convicted to meet the ends of justice---Case of accused in view of evidence was that of acquittal---Forgiveness or compromise, was effective in Tazir cases, if the matter related to "Haqooq-ul-Ibad"---Compromise entered into by the parties, could not be taken as incriminating piece of evidence against accused---Islam was in favour of AFW (pardon)---Even if the act of compromise in tazir was taken as implied extra judicial confession, even then, it would not be sufficient to create incriminating circumstances---Trial Court was not justified to read in evidence the simple and plain statements of the legal representative recorded before Judicial Magistrate for the release of accused persons on bail against accused---Impugned order was not maintainable.

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

----Ss. 309, 310 & 311---Criminal Procedure Code (V of 1898), S.265-K---Qatl-i-amd---Waiver-AFW of qisas, compounding of qisas, tazir after waiver or compounding of right of qisas---Acquittal, application for---Under S.311, P.P.C., even after waiver by the legal representatives of the deceased, the court, was empowered to convict accused, if all the walis had not waived the right of qisas; or accused would come within the ambit of term "Fasad-Fil-Arz"---Idea of the law givers in enacting S.311, P.P.C., was to inflict punishment on those, who, notwithstanding the composition or waiver by wali, had to be visited with some penalty, not only for their propensity towards criminal act, but its mode of fabric execution---Only those persons who fell within the ambit of "Fasad-e-Fil Arz", could be convicted and sentenced under S.311, P.P.C.---Court was to keep in consideration the provisions of Ss. 309 & 310, P.P.C., otherwise said section would become redundant and superfluous in its application---Accused persons, in the case were neither previously convicted nor were habitual and professional criminals---Accused were acquitted of the charges in circumstances.

Malik Haq Nawaz for Petitioners.

Dy. Advocate-General for the State.

Date of hearing: 28th November, 2014.

2015 P Cr. L J 768

[Gilgit-Baltistan Chief Court]

Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J

The STATE---Petitioner

versus

SUFI ALI and 3 others---Respondents

Criminal Appeal No. 4 of 2011 in C.P.L.A. No. 13 of 2011, heard on 16th May, 2014.

Penal Code (XLV of 1860)---

----S. 153-A---Anti-Terrorism Act (XXVII of 1997), Ss.8 & 9---Criminal Procedure Code (V of 1898), Ss.417(2) & 196---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60---Promoting enmity between different groups, acts intended or likely to stir up sectarian hatred and offences against the State---Procedure---Appeal against acquittal---Maintainability---Section 196, Cr.P.C., had elaborated that it was the domain of the Central Government or the Provincial Government or an officer empowered on their behalf to move a complaint for invocation of S.153-A, P.P.C.---Procedure specified in S.196, Cr.P.C., had to be strictly complied with and any defect in procedure was not curable---Such mandatorily expressed provision could not and should not be overlooked---Supreme Appellate Court observed that Legal Branch in Gilgit-Baltistan, should be well versed with such matters and all District Police Officers should be acquainted with the matters for which procedure had been laid down and steps to be taken---Findings of the Chief Court Gilgit-Baltistan, in the present case, whereby accused were acquitted from the charges, prosecution and Law Department should have gone through the clear cut orders of the court and realized their mistake, and having legal approach not to prefer an appeal in the Supreme Appellate Court, as the said order had no infirmities---Legal department, in the present case, should have consulted the Advocate General Gilgit-Baltistan, who was representing them; if they did not agree to his professional advice, then Law Department should depute one of its experts, and well versed officers to deal with the matter with their professional advice by performing such non-maintainable appeal against acquittal, revisions and reviews---Supreme Appellate Court further observed that findings of the Chief Court, in the present case, were not based on the merits and quality of evidence adduced, but on the mode adopted for prosecution of the individuals.

Rashid Ahmad v. The State PLD 1972 SC 271; Mst. Akhtar Malik v. Federation of Pakistan and 5 others 1994 PCr.LJ 229; Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11 and Bashir Ahmad v. The State 2000 PCr.LJ 902 ref.

Advocate-General Gilgit-Baltistan for the State.

Malik Haq Nawaz for Respondent No.4.

Mir Ikhlaq Hussain for Respondents Nos.1, 2 and 3.

Date of hearing: 16th May, 2014.

2015 P Cr. L J 1072

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ASHRAF HUSSAIN---Petitioner

versus

The STATE---Respondent

Cr. Misc. No. 3 of 2015, decided on 4th April, 2015.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possessing and trafficking narcotics---Bail, refusal of---Police recovered charas weighing 18 Kilograms of the value of about Rs.8,00,000 from accused, and submitted incomplete challan for trial of accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Subsequently Police filed complete challan for trial of accused under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---Both laws "Control of Narcotic Substances Act, 1997 and Prohibition (Enforcement of Hadd) Order, 1979", were in field in Gilgit-Baltistan---Government had established Anti-Narcotic Force for controlling narcotic trafficking in Gilgit-Baltistan---Section 9(c) of Control of Narcotic Substances Act, 1997, provided harsh punishment for offences of narcotic trafficking as compared to the punishment provided in corresponding Ss.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---In the present case, as the quantity of the charas (18 Kilograms) allegedly recovered from accused was heavy quantity, S. 9(c) of Control of Narcotic Substances Act, 1997 was the appropriate law which was attracted---Police malafidely exercised power of Anti-Narcotic Force and submitted incomplete challan under S.9(c) of Control of Narcotic Substances Act, 1997 and then final challan under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, to give benefit to accused---Petition for grant of bail, was refused by the Chief Court with direction for taking disciplinary action against SHO and Investigating Officer for the evident mala fide on their part in conducting the investigation of the case.

Hassan Jahangir for Petitioner.

Mir Muhammad, Additional Advocate-General for the State.

2015 P Cr. L J 1119

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J.

Syed NABI SHAH---Petitioner

versus

The STATE through FIA Gilgit-Baltistan, Gilgit---Respondent

Cr. Miscellaneous Nos. 158 and 160 of 2014, decided on 19th March, 2015.

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

----S. 5(2)---Penal Code (XLV of 1860), S.409---Criminal Procedure Code (V of 1898), S.561-A---Embezzlement, misappropriation to Public Exchequer, criminal breach of trust by public servant---Petition for quashing of FIR---Alleged offences had been committed in their official capacity by accused persons, while dealing with the routine affairs of the project, which was a routine business and could not come to the knowledge of Anti-Corruption Department, until and unless such nature of offence was not dug out, or reported by any of the affected person---Alleged delay in lodging FIR, could not be considered to be a result of false implication in the alleged offences, or could be attributed as deliberation for mala fide involvement of accused persons---All the concerned persons involved in the case had been held responsible and challan had been submitted in the court duly supported by ample documentary as well oral evidence---Merely the oral plea taken by accused for quashing of FIR and proceedings, could not be considered---Concept of S.561-A, Cr.P.C., did not mean to provide the alternate forum to collect evidence to prove/disprove the guilt of accused---Required permission for arrest of accused had been obtained from the Sessions Judge, instead of the Magistrate, its validity would be examined during the course of trial---Other proceedings, including lodging of FIR, was strictly observed in accordance with relevant laws/rules of Prevention of Corruption Act, 1947---Petition under S.561-A, Cr.P.C., did not cover the requirements provided in S. 561-A, Cr.P.C. for quashing of FIR or any proceedings.

Raja Shakeel Ahmed for Petitioner (in Criminal Miscellaneous No.158 of 2014).

Malik Shafqat Wali for Petitioner (in Criminal Miscellaneous No. 160 of 2014).

Javed Akhter, Dy. Attorney-General Pakistan, assisted by Shabbir Hussain Shigri, A.D. Legal FIA for the State.

2015 P Cr. L J 1305

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Yar Muhammad, JJ

FARMAN KARIM and 3 others---Petitioners

versus

The STATE---Respondent

Criminal Miscellaneous No. 74 of 2014, decided on 19th March, 2015.

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

----S. 295-A---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Criminal Procedure Code (V of 1898), Ss.196 & 561-A---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs---Quashing of proceedings---Case under S.295-A, P.P.C., could not be registered against any person, unless same was made upon complaint by order of or under authority from the Federal Government or the Provincial Government concerned; or some other officer empowered in that behalf by, either of the two Governments---In the present case, no such sanction had been obtained---If case pertained to offences against State; cognizance thereof could not be taken unless clog put in S.196, Cr.P.C., was removed---No doubt, provision of S.196, Cr.P.C., was mandatory in nature, unless prohibition contained in said section was crossed by sanction of Federal or Provincial Government, followed by a complaint by an authorized person, however when such a case became triable by a Special Judge, established under Anti-Terrorism Act, 1997, provisions of S.196, Cr.P.C., which pertained to general law, would not be applicable to the proceedings before Special Court, because Anti-Terrorism Act, 1997, which was a special law, had overriding effect, notwithstanding anything contained in Criminal Procedure Code, 1898.

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

----S. 196---Prosecution for offences against the State---Object of S.196, Cr.P.C., was to prevent unauthorized person from intruding---State affairs by instituting State prosecution, and to secure that such prosecution would only be instituted under the authority of the Government---Government was to decide, whether an offence of the kind mentioned in S.196, Cr.P.C., should be tried in court; or whether it would be more in the interest of the people, or administration to suppress the trial; and since an offence would assume importance, not only from its own nature, but also from the personality of the offender---Government was empowered to decide, whether a particular person should be prosecuted or not.

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

----Ss. 561-A & 265-K---Inherent jurisdiction of High Court---Power of court to acquit accused at any stage---Powers of Chief Court under S.561-A, Cr.P.C., was not meant to stifle the prosecution, rather was intended to prevent the process of court being abused, or perversion the purpose of law---Jurisdiction under S.561-A, Cr.P.C., could be invoked to quash the proceedings in cases where trial of accused would tantamount to abuse the process of court---Provision of S.561-A, Cr.P.C., stipulated that the inherent powers, vested in the Chief Court to prevent the abuse of the process of any court, or otherwise to secure the ends of justice, were not limited---Object of S.561-A, Cr.P.C., was to do the real and substantial justice, which being extra ordinary in nature, was desired by law to be exercised sparingly, with utmost care and not in a casual manner---While exercising said powers, the main consideration for the court should be that whether the continuance of the proceedings before court would be a futile exercise, and would result in abuse of process of court or not---Legal proceedings, could be quashed where case was of no evidence at all, or where as a matter of law, there could not be any possibility of conviction of accused; and to keep a case lingering on in said circumstances, would amount in fact to an abuse of process of the court---Law favoured that every case should be allowed to proceed according to law; and resort to S.561-A, Cr.P.C., should not lightly made, as same would tend to circumvent to due process of law---Section 265-K, Cr.P.C., almost provided to the Trial Court exclusive power of Chief Court under S. 561-A, Cr.P.C. and both could be resorted to---Petition seeking quashing of criminal case without availing of alternate remedy provided under S.265-K, Cr.P.C., would be competent, when the petitioners, were handicapped in availing of alternate remedy under S.265-K, Cr.P.C., for acquittal---Proposition of law that jurisdiction under S.561-A, Cr.P.C., was of an extraordinary nature to be used only in extraordinary cases, where no other remedy was available, was beyond controversy---Said powers were not usually invoked, when there was another remedy available---Where remedy under S.265-K, Cr.P.C. was available to the petitioner, he could not move the Chief Court under S.561-A, Cr.P.C.

Amjad Husain for Petitioners.

Dy. Advocate-General for Respondent.

Date of hearing: 19th March, 2015.

2015 P Cr. L J 1335

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

FARMAN ALI---Petitioner

versus

Dr. MUSA KARIM and 2 others---Respondents

Cr. Rev. No. 16 of 2014, decided on 31st March, 2015.

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

----Ss. 154 & 155---Lodging of FIR---Procedure---For purposes of lodging FIR, criminal offences were to be classified into two sections, one which were cognizable, and the others, which were non-cognizable--- Provision under S.154, Cr.P.C., provided the procedure to the effect that a report conveyed to SHO, in respect of a cognizable offence, was to be dealt with accordingly, while the provision of S.155(1) of Cr.P.C., contained the procedure envisaged vis-a-vis the information, relating to a non-cognizable offence---Mandate and purpose of that law was that whenever SHO would receive some information about the commission of an offence, he was expected, first to find out, whether the offence fell into the category of cognizable offences, or was one which was not cognizable and thereafter the SHO was obliged to take action accordingly so that the mandatory provisions contained in Ss.154/155, Cr.P.C., would not be violated.

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

----Ss. 6, 22-A, 154, 155, 156, 435 & 439---Registration of criminal case---Powers of Justice of Peace---Revision before Chief Court---Maintainability---Offences as alleged in the present case were committed by proposed accused persons were non-cognizable, but SHO failed to adopt the procedure provided under S.155(1), Cr.P.C.---Petitioners, approached the Justice of Peace to use his power in the matter, but Justice of Peace declined application filed by the petitioner through impugned order---Ex-officio Justice of Peace, was not supposed to allow application under S.22-A, Cr.P.C., in a mechanical manner, but he had to apply his mind, as to whether, the applicant had approached the court with clean hands; or it was tainted with malice---If the matter was judged in the light of that background, petitioner was trying to compensate himself about his wrong, he did with respondents---Appeal and revision, could be filed, only against an order/judgment passed by a competent court falling under S.6, Cr.P.C.; and any order passed by such court could be examined by High Court as provided under S.435, Cr.P.C.---Justice of Peace, could not be said to be a judicial authority holding a court as classified under S.6, Cr.P.C.---Order passed by Justice of Peace, could not be impugned through revision before Chief Court, because said order fell within the domain of administrative or supervisory, and not amenable to revisional jurisdiction---Revision petition, being not sustainable both on merit and maintainability, was dismissed, in circumstances.

Ijlal Hussain for Petitioner.

Ali Dad Khan and Faqir Shakir for Respondents.

Date of hearing: 31st March, 2015.

2015 P Cr. L J 1656

[Chief Court, Gilgit Baltistan]

Before Yar Muhammad, J

REHMAT NASEER and another---Petitioners

versus

The STATE---Respondent

Criminal Miscellaneous Nos.53, 55 and 59 of 2015, decided on 10th July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 345, 439-A & 561-A---Penal Code (XLV of 1860), Ss.302, 324 & 311---Qatl-i-amd, attempt to commit qatl-i-amd---Compromise---Tazir after waiver or compounding of right of qisas in qatl-i-amd---Bail, grant of---Accused persons after their arrest, were brought before the Judicial Magistrate, where the complainant party effected compromise with accused person---On basis of that composition, Judicial Magistrate released accused persons on bail---After completion of the investigation and proceedings in the cases, the Police submitted challans of the cases to Judicial Magistrate, who after doing the needful, initiated the proceedings to the Sessions Judge/Trial Court---Trial Court without serving any notices, cancelled the bail facilities extended to accused persons by the Judicial Magistrate and directed for deposition of accused persons in judicial lock up---Accused persons, had filed application under S.497, Cr.P.C., seeking release on bail---Impugned orders of the Trial Court, though were silent as to under which law Trial Court passed orders cancelling bail allowed to accused persons, however, Chief Court observed that Trial Court had passed impugned orders in exercise of powers vested in it under S.439-A, Cr.P.C.---Impugned orders passed by the Trial Court, were bad in the eye of law because prior to cancellation of bail orders, Trial Court did not issue any notice to accused persons affording them a chance to defend their liberty---Accused persons had accrued a right, which could not be snatched without hearing them---Trial Court, while passing the impugned orders had not acted judiciously---Since the Trial Court passed impugned orders without hearing the accused persons, legal sanctity could not be attached to said orders, when same resulted in penal consequences and curbing the right of liberty---Trial Court, which had passed impugned orders, while exercising the power vested in it under S.439-A, Cr.P.C., had closed the doors for accused persons to seek remedy against said orders, because law provided that, without getting the orders of the Trial Court set aside, accused persons, were not permitted to file bail matters before the Trial Court and the Chief Court---Only remedy, in the circumstances, left with accused persons, was to challenge the impugned orders of the Trial Court before Chief Court, invoking its revisional jurisdiction, instead of filing application for grant of bail---Order passed in exercise of revisional jurisdiction could not be challenged in revisional side before the Chief Court---Bail application, in circumstances, could be converted into an application under S.561-A, Cr.P.C.---When a valid ground for bail was found on the record, normally bail was granted, even if the case was not bailable, because granting of bail was an interim relief---When two opponents were going to resolve their dispute by way of compromise, the courts were expected to extend their co-operation for the parties to resolve the matter, so that same be helpful to maintain peace and tranquility in the society---Judicial Magistrate, having also been vested with supervisory powers, was empowered to entertain bail application, even in the case, exclusively triable by Sessions Judge---Judicial Magistrate, in circumstances, had rightly exercised his jurisdiction, but Trial Judge, while recalling the bail facility, had misconceived the facts and law resulting in the suffering of accused persons in jail calling interference by the Chief Court---Bail applications, were converted into applications under S.561-A, Cr.P.C., and accepted---Impugned orders passed by the Trial Court, were set aside, and orders of Judicial Magistrate were maintained with direction that accused persons be released from jail, in circumstances.

1998 PCr.LJ 1035; 2011 PCr.LJ 448; PLD 2010 SC 585; 1991 SCMR 599 and 2011 SCMR 599 ref.

Jehanzeb Khan and Zahoor Ahmed for Petitioners (in Criminal Miscellaneous Nos.53 and 55 of 2015).

Jehanzeb Khan for Petitioner (in Criminal Miscellaneous No.59 of 2015)

Malik Sher Baz, Dy. A.-G. for the State (in Criminal Miscellaneous Nos.53, 55 and 59 of 2015).

Date of hearing: 6th July, 2015.

2015 P Cr. L J 1681

[Chief Court, Gilgit-Baltistan]

Before Muhammad Alam and Yar Muhammad, JJ

ZAMEER ABBAS---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through D.G. NAB and others---Respondents

Writ Petition No.12 of 2015, decided on 2nd June, 2015.

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

----Art. 71---Writ Petition---Petitioner, sought a direction to Director General FIA, restraining him from conducting enquiry/investigation into the process---Contention of the petitioner was that National Accountability Bureau and a Departmental Committee, appointed by the competent authority was simultaneously conducting inquiry/ investigation to probe into the matter, interference of FIA was illegal---Petitioner prayed that FIA be directed to restrain from conducting inquiry---Validity---Both National Accountability Bureau and Federal Investigation Agency had been established under special laws and the purpose of their establishment was to prevent corruption and illegal appropriation of funds---Both institutions, were free to conduct investigation in offences falling in their respective schedules---In the present case, Departmental Authority, was probing into the role of the petitioner, whereas Anti-Corruption Establishment was considering the same from the angle of financial embezzlement committed by the authorities of the department in connivance with the person to whom the contract was awarded, while the NAB was busy in finding out the facts qua the alleged fraud committed in the name of purchasing of items in question---Petitioner, in circumstances, was not justified to say that he was being proceeded against before different forums qua the same allegations---No FIR, had been registered against the petitioner or any other officer of the department, rather the FIA and the NAB, were carrying investigations at their ends to find out the facts, which would also suggest that after conducting detailed enquiry, the petitioner, could be exonerated from all charges---Fastening hands of the establishments from conducting investigation into the alleged offence at such a stage, would be illegal in the eye of law as at the present stage neither there was a case of abuse of process of law, nor a case where Chief Court should intervene to secure the ends of justice---Any interference with the process of investigation at such a stage, could itself amount to abuse of process of law---Version of the petitioner, that he was being double jeopardized, was not correct---Both NAB and FIA, were at liberty to conduct the investigation into the matter, which would be helpful to bring out the truth---Binding hands of said establishments at such a stage from conducting enquiries in different angles, would be the actual abusing of the process of law---Petitioner, could not be double jeopardized because protection had been provided under S.403, Cr.P.C., in that regard---Order accordingly---Petition was dismissed.

PLD 1967 SC 317 ref.

2013 PCr.LJ 1119 rel.

Shaukat Ali for Petitioner.

Muhammad Abbas, Special Prosecutor for Respondents Nos.1 and 2.

Deputy Attorney General for Respondents Nos. 3 and 4

Respondent No.5 in person.

Date of hearing: 2nd June, 2015.

2015 P Cr. L J 1784

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

STATE through Police Station FIA Gilgit---Appellant

Versus

Syed ALI SHAH, ACCOUNTANT DISTRICT INSPECTOR OF SCHOOL SKARDU BALTISTAN and another---Respondents

Criminal Appeal No.4 of 2013, decided on 2nd April, 2015.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 417(2-A)---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 and corruption---Appeal against acquittal---Reappraisal of evidence---Some fraudulent withdrawal of amount was alleged against accused persons---One accused as cashier, prepared pay bills, which were typed by another official---Other accused put up the bills to Signing Authority who signed the same---Said bills were duly passed by competent authority; and the accused drew the amount in question from the Bank---All said persons, including both accused persons played their respective role in withdrawal of disputed amount, but recovery was shown against one accused who deposited said amount in Bank through two cheques---Trial Court, had not accepted two cheques, only because the marginal witnesses to recovery memos showing recovery of said amount, was not examined in the court---Accused persons, and signing authority being colleagues in one office, were equally responsible for the alleged withdrawal---Once it was established that the accused deposited the amount of over drawal, the only plea justifying the alleged withdrawal, was the plea of any mistake on the part of accused persons, but accused persons did not plead that the alleged withdrawal was result of any mistake on their part---Proof of deposit of alleged embezzelled amount through two cheques was very important and relevant pieces of prosecution evidence---Trial Court omitted to ask any question from accused persons on that particular aspect of the case---Trial Court was supposed to decide whether the said documents, were sufficient proof of guilt of alleged offence or otherwise---Impugned order was set aside, and case was remanded to the Trial Court, which would hear parties afresh and pass orders in the light of material available on record.

Additional Advocate General for the State assisted by Syed Dildar Hussain, Assistant Director Legal, FIA.

Muhammad Nazir and Muhammad Yahya for Respondent No.1.

Wazir Walayat Ali for Respondent No.2.

Date of hearing: 2nd April, 2015.

2015 P Cr. L J 95

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ZAFAR IQBAL---Petitioner

Versus

The STATE through Police Station Thothal Mirpur---Respondent

Criminal Revision No. 8 of 2014, decided on 17th 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---Offence under S.489-F, P.P.C. did not fall within prohibitory clause of S. 497, Cr.P.C. as maximum punishment for the same could be awarded up to three years---Issuance of cheque dishonestly and knowingly that same would be dishonoured later on were the facts to be proved for constituting of an offence under S.489-F, P.P.C.---Such facts could not be determined at bail stage and same would require further probe---Dishonestly discharging of an obligation and genuineness of signatures of drawer were matters which required probe and evidence---Issuance of a cheque which was subsequently dishonoured did not constitute an offence under S. 489-F, P.P.C. unless it was proved that same was issued dishonestly and for repayment of loan or for discharging of any obligation---Accused had been sent to judicial lockup and investigation had been completed who was no more required for the purpose of investigation---No useful purpose would serve to keep the accused in the lockup---Bail could not be refused in the offence under S. 489-F, P.P.C. when no further investigation had to be made---Bail was granted in circumstances.

2010 YLR 624; 2011 PCr.LJ 869 and PLD 2013 Lah. 442 ref.

2010 YLR 624; 2011 PCr.LJ 869 and PLD 2013 Lah. 442 rel.

Kamran Tariq for Petitioner/accused.

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

2015 P Cr. L J 1373

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and M. Tabassum Aftab Alvi, J

SALIK ZAHUR KHAN---Petitioner

versus

NAZIA SALIK and 5 others---Respondents

Criminal Miscellaneous Application No. 19 of 2015, decided on 11th June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Minors, recovery of---Order had been passed by Court of United Kingdom for custody of minor---Scope---Contention of father-petitioner was that High Court of Justice Family Division, United Kingdom had issued order for handing over the minor-girls to the petitioner---Validity---Minors were British nationals having British passports---United Kingdom Court could competently decide the dispute between the parties with regard to custody of minors---Order passed by the United Kingdom Court was binding on respondents---Welfare of minors could only be decided by the court where the minors were residing---High Court (AJ&K) could not interfere in the jurisdiction of Court of United Kingdom seized with the matter with regard to determination of issue of welfare of minors---Contesting respondents might raise such plea before the Court of United Kingdom---View and opinion of the minors was important---High Court (AJ&K) examined and interviewed the minors who wanted to join their father subject to the condition that their mother along with grandparents also accompanied them otherwise they wanted to live with their mother---Minors were living with their mother and grandparents therefore in view of the influence of respondents much importance could not be given to their opinion---Respondents were directed to allow the father to meet the minor-daughters in their present residence for a fortnight---Respondents should handover the custody of minor-girls along with traveling documents to father and in case their failure Judge Family Court would summon the minors after a fortnight on the very next day from the respondents and hand over them to the father-petitioner---British High Commission would be responsible to send the minors along with petitioner and their mother if she was also willing to go to the United Kingdom---Habeas corpus petition was accepted, in circumstances.

Ali Akbar v. Mst. Kaniz Maryam PLD 1956 Lah. 484; Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 (W.P.) Lahore 534; Muhammad Yousuf alias Salim v. Aba Ali Adam and others 1992 PCr.LJ 2176 and Ms. Louise Anne Fairley v. Sajjad Ahmed Rana and 2 others PLD 2007 Lah. 293 ref.

Muhammad Yaseen Khan for Petitioner.

Raja Inam-Ullah Khan for Respondents Nos.1 to 3.

Nemo for Respondents Nos.4 and 5.

Respondent No.6 in person.

2015 P Cr. L J 1464

[High Court (AJ&K)]

Before Chaudhary Jahandad Khan, J

MUHAMMAD MUNIR---Petitioner

versus

The STATE through Advocate-General AJ&K, Muzaffarabad---Respondent

Petition No.66 of 2013, decided on 24th March, 2015.

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

----Ss. 419, 420, 467, 468 & 471---Criminal Procedure Code (V of 1898), Ss.540 & 561-A---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery using as genuine a forged document---Re-examination of witness---Petition for quashing of orders---Prosecution witnesses, along with witness sought to be re-examined, were cross-examined by accused---When case was posted for recording the statement of accused under S.342, Cr.P.C., accused moved an application under S.540, Cr.P.C., before the Trial Court for summoning of one of prosecution witnesses/complainant, for re-examination, which application having concurrently been dismissed by the Trial Court and Appellate Court below, petitioner/accused had filed petition under S.561-A, Cr.P.C., for quashing of concurrent orders of the courts below---Validity---Trial Court provided full opportunities to petitioner/accused and his counsel to cross-examine witnesses adduced by the prosecution---Counsel of accused cross-examined witness sought to be re-examined, in presence of accused as much as they desired---Said witness had been fully cross-examined under the law---No illegality or infirmity had been committed by both the courts below in rejecting application of accused for re-examination of said witness---When the whole evidence of prosecution had already come on record in normal course and according to law with proper opportunities allowed to the defence for re-examination, no justification existed for making a request to recall witness who had already been cross-examined by accused with full vehemence---If S.540, Cr.P.C., was allowed to be invoked, in such a situation, it would amount to setting up a dangerous precedent and there would be no end---Opportunity of cross-examination could not be repeated without solid reasons and not on the flimsy grounds, as taken by petitioner/accused in his application---While upholding the impugned orders passed by both the courts below, petition under S.561-A, Cr.P.C., was dismissed, in circumstances.

Riaz and others v. The State 1991 PCr.LJ 877 distinguished.

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

----S. 540---Interpretation of S.540, Cr.P.C.---Power given to the court to summon any person as witness or examine any person in attendance, or recall and re-examine any person already examined, was discretionary---In the first part of S.540, Cr.P.C., word "may" was used, whereas in second part word "shall" was used it had made to some extent mandatory for the court to summon and examine, or recall and re-examine any such person, if his evidence would appear to the court to be essential for just decision of the case---Mandatory part of S.540, Cr.P.C., would operate only when the court was satisfied that evidence proposed to be produced was essential for just decision of the case---Satisfaction of the Trial Court about the imperative and essential nature of the evidence proposed to be produced, was necessary.

Petitioner in person.

Nemo for Respondent.

2015 P Cr. L J 90

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SULTAN MAHMOOD---Petitioner

Versus

MANSOOR SHAMSI and another---Respondents

Criminal Miscellaneous No.606-BC of 2014, decided on 17th October, 2014.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for cancellation of bail, dismissal of---Complainant was unable to show as to which condition for grant of bail or bond had been violated by the accused after seeking bail from the High Court---Although Trial Court had issued non-bailable warrants against accused due to his absence during trial, but same were later on withdrawn---Such ground was also not sufficient for cancellation of bail---No exceptional circumstances were shown to have existed to deprive accused of his liberty---Petition for cancellation of bail was dismissed accordingly.

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

----S. 497---Bail, refusal/cancellation of---Abscondment of accused---Abscondment itself could not be used to kill each and every right of accused---Abscondment should not come in the way for refusal of bail and same could not be made a ground for cancellation of bail.

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

---S. 497(5) --- Cancellation of bail--- Principles.

Following are the settled principles of law required to be considered while dealing with the petition for cancellation of bail:--

(i) If the court while granting bail had not violated the principles laid down for grant of bail, the cancellation was not proper;

(ii) Mere fact that there could be another opinion to that of opinion framed on the tentative assessment of evidence, would not be sufficient to cancel bail, if facts were assessed on the test of further inquiry into the guilt, or innocence of accused in terms of S.497(2), Cr.P.C.;

(iii) Strong and exceptional grounds were required for cancellation of bail;

(iv) When trial had already commenced, discussion and remarks upon the merits of the case should be avoided;

(v) Court while considering cancellation plea had to see whether bail granting order was patently illegal, erroneous, factually incorrect and resulted in miscarriage of justice.

(vi) When bail was granted by a competent court for valid and cogent reasons, it was not open to legitimate exceptions;

(vii) If accused after grant of bail had misused the concession of bail and conditions of bond executed.

(viii) In case of fresh ground for cancellation, the court which granted bail should be approached first, as a matter of propriety.

Raja Muhammad Farooq for Petitioner.

2015 P Cr. L J 129

[Islamabad]

Before Athar Minallah, J

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.299-B of 2014, decided on 12th August, 2014.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Civil Procedure Code (V of 1908), O. XXXVII---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Grant of bail in cases falling under non-prohibitory clause of subsection (1) of S.497, Cr.P.C.---Principles---Offence under S.489-F, P.P.C. fell within non-prohibitory clause of subsection (i) of S.497, Cr.P.C., grant of bail had to be considered favourable as a rule and bail should be declined only in exceptional cases i.e. where accused was likely to abscond, tamper with prosecution evidence, repeat the offence if released on bail or was previously convicted---F.I.R. was registered by delay of 3 months---Record did not show that accused was a previous convict---Questions of existence of business relationship between the parties or of any contractual commitment giving rise to issuance of cheque and genuineness of signature and writing on the cheque called for further probe---Person was presumed to be innocent unless proved guilty---Provision of S.489-F, P.P.C. was not intended by legislature to be used for recovery of amount (in dispute); same was designed to determine the guilt and award sentence---Order XXXVII, C.P.C. provided remedy for recovery of the amount---Offence under S.489-F, P.P.C. did not fall within prohibitory clause of subsection (1) of S.497, Cr.P.C.---Bail was granted.

2009 SCMR 1488; 2011 SCMR 1708; Subhan Khan v. The State 2002 SCMR 1797; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Object and scope of S.489-F---Provision of S.489-F, P.P.C. was not intended by legislature to be used for recovery of money (in dispute); same was designed to determine the guilt and award sentence.

Sardar Muhammad Ali Khan for Petitioner.

Malik Zahoor Awan, Standing Counsel.

Muhammad Riaz, S.I./I.O.

2015 P Cr. L J 224

[Islamabad]

Before Ather Minallah, J

MUHAMMAD ABID FAROOQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.514-B of 2014, decided on 9th September, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss.406 & 75---Constitution of Pakistan, Art.10-A---Criminal breach of trust---Bail, grant of---Principles---Further inquiry---Registration of other F.I.Rs.---Conviction in other cases---Effect---Habitual offender---Determination of---Alleged offence not falling under prohibitory clause of S.497, Cr.P.C.---Where offence did not fall within prohibitory clause of S.497, Cr.P.C. grant of bail had to be considered favourably as a rule and could only be declined in exceptional cases, namely, where accused was likely to abscond, tamper with prosecution evidence, repeat the offence if released and/or where accused was a previous convict---F.I.R. was registered by delay of 3 months---Story narrated in F.I.R. did not constitute alleged offence---Whether the alleged breach constituted offence would be determined by Trial Court---Case of accused was one of further inquiry---Investigation had been completed---Further custody of accused would serve no beneficial purpose---Amount involved in the case would not influence the grant of bail as offences in Penal Code were of criminal nature, proceedings related to such offences could not be treated as recovery proceedings---Presumption of innocence was basic pillar of criminal law---Every person had to be presumed innocent until proved guilty---Presumption of innocence was basis of right to defence of an accused and key to fair trial---Under Art.10-A of the Constitution right to fair trial was a fundamental right---Fair trial and due process essentially envisaged being free from bias of every kind---Person facing trial in multiple F.I.Rs. had independent right to defend himself in each case---Registration of other cases would not influence/bias court as such bias would deprive accused of his right to fair trial---Justice should not only be done but also should be seen to have been done---Conviction in other case would only be relevant for specific purpose of enhancement of punishment under S.75, P.P.C.---Mere factum of registration of cases was not sufficient to form opinion that accused was a hardened, desperate or dangerous criminal in terms of fourth proviso to subsection (1) of S.497, Cr.P.C.---Mere registration of a case by itself was not sufficient to declare an accused habitual offender unless accused had been convicted of any of such offences---Court could not allow itself to be prejudiced or influenced by registration of another case/multiple cases or even conviction as any such influence would deny accused the right to fair trial and due process---Discretion to grant bail could not be exercised in arbitrary, fanciful or perverse manner---Where accused had made out a case for grant of bail on reasonable grounds, refusal of bail on ground of conviction in some other case would give rise to factor of bias which would deprive accused of the right to defence, due process and fair trial---Bias resulting from conviction in another case would lead to an absurd situation wherein conviction in one case would be deemed conviction in every case, resultantly, accused will not be able to get bail in other cases and would remain incarcerated without trial---Accused was admitted to bail.

Muhammad Naeem v. The State PLD 2003 Kar. 76 and Faisal Khawaja v. The State 2001 MLD 1237 ref.

Shameel Ahmed v. The State 2009 SCMR 174 distinguished.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Mounder v. The State PLD 1990 SC 934 and Jafar alias Jafari v. The State 2012 SCMR 606 rel.

(b) Constitution of Pakistan---

----Art. 10-A--- Fair trial---Scope---Constituents/requirements/ essentials---Presumption of innocence was basis of right to defence of an accused and key to fair trial---Under Art.10-A of the Constitution fair trial was a Fundamental Right---Fair trial and due process essentially envisaged being free from bais of every kind---Court could not allow itself to be prejudiced or influenced by registration of another case/multiple cases or even conviction of a person, as any such influence would deny accused right to fair trial and due process.

Jahangir Khan Tanoli for Petitioner.

Talat Abbas Khan, Standing Counsel.

Complainant in person.

Abdul Razzal, S.-I. with record.

2015 P Cr. L J 259

[Islamabad]

Before Athar Minallah, J

IMRAN MASOOD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 469-B of 2014, decided on 3rd October, 2014.

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

----S. 497(1), third proviso---Bail, grant of---Statutory delay---Applicability---Principles, enlisted.

Following are the principles with regard to grant of bail on the ground of statutory delay:--

(i) Accused under third proviso to section 497(1), Cr.P.C. is entitled to bail as a matter of right, if statutory period mentioned in either clauses (a) or (b) has expired and trial has not been concluded.

(ii) Right of bail in case of statutory delay is clearly provided in law, as the word "shall" cannot be read as "may".

(iii) Such right can be defeated only if State or complainant is able to show that delay in trial is attributable to accused and once it is shown, then such right is forfeited.

(iv) Right under third proviso cannot be denied under discretionary power of Court to grant bail and, therefore, the right is not left to discretion of Court but it is controlled by third proviso read with fourth proviso to section 497(1), Cr.P.C.

(v) It is not intention of law to calculate amount of delay caused by defence; rather, it is necessary to see whether progress and conclusion of trial has, in any manner, been delayed by an act or omission on the part of accused.

(vi) While ascertaining delay, cumulative effect in disposal of case is to be considered, and it is not merely mathematical calculation of excluding such dates for which adjournment was obtained by accused or counsel.

(vii) When witnesses are in attendance and matter is ripe for recording of evidence but defence does not proceed and effective hearing is postponed by accused or his counsel, it is an important factor for consideration.

(viii) Bail under third proviso can be refused on the ground that delay in conclusion of trial had been caused on account of any act or omission of accused or any person acting on his behalf.

(ix) Where, for any reason, accused or his authorized agent, which necessarily included counsel engaged for defence, caused delay, the protection under third proviso cannot be invoked.

(x) Right of accused for bail on statutory grounds cannot be defeated for any other reason except on the ground as provided in third and fourth provisos.

(xi) Object of right to bail on statutory grounds subject to conditions mentioned in third proviso is to ensure that criminal trials are not unnecessarily delayed.

(xii) When statement of one of the witnesses has yet to be recorded, it cannot be said that trial has been concluded.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Zahid Hussain Shah v. The State PLD 1995 SC 49; Abdur Rashid v. The State 1998 SCMR 897; Sher Ali alias Sheri v. The State 1998 SCMR 190; Akhtar Abbas v. State PLD 1982 SC 424; Moundar and others v. The State PLD 1990 SC 934 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 rel.

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 10-A---Qatl-i-amd---Bail, grant of---Delay in trial---Right to fair trial---Principle---Accused was arrested on 26-6-2012 and despite lapse of more than two years trial was not concluded---Effect---Object of third proviso to S. 497(1), Cr.P.C. was to ensure that right to fair trial as guaranteed under Art. 10-A of the Constitution was not denied---Right to fair trial was not merely restricted to accused but complainant as well---Purpose of avoiding delay was to ensure that sanctity of proceedings remained protected, which inherently included securing credible evidence---Delay defeated ends of justice and could seriously undermine possibility of fair trial---Delay in trial resulted in an inherent risk of undermining and eroding credibility of evidence as human memory impaired with passage of time, witness might not be traceable or documents might get lost---Edifice of criminal law was premised on the principle that trials must be concluded within a reasonable time, expeditiously and without unnecessary delay---Delay in trial but in criminal trials in particular was intolerable---Delay in trial beyond the period of two years was not attributed to accused or his agent---Delay was on the part of prosecution, complainant or administrative exigencies of Court---High Court did not deny to petitioner the right of bail under third proviso to S.497(1), Cr.P.C., which right was not left to discretion of High Court---Bail was allowed in circumstances.

Panjal v. The State 1990 PCr.LJ 2051; Tariq Butt v. The State 1990 SCMR 1090; Agha Shafqat Hussain and others v. The State and others 1981 PCr.LJ 572; Ishfaq Ahmad and another v. The State PLD 1990 Pesh. 156; Zulfiqar v. The State 1998 MLD 1551; Rahim Bux and others v. The State PLD 1986 Kar. 224; Muhammad Sabir v. The State PLD 2008 Lah. 159 and Iftikhar Ahmad v. The State 1990 SCMR 607 ref.

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

----S. 497(1), third proviso---Habitual offender---Proof---As long as an accused is not convicted, he would not attract the adjective of a 'habitual offender'.

Moundar and others v. The State PLD 1990 SC 834 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 rel.

Raja Rizwan Abbasi for Petitioner.

Ansar Nawaz Mirza for the Complainant.

Malik Zahoor Ahmad Awan, Standing Counsel.

Muhammad Younas, S.-I. with record.

2015 P Cr. L J 506

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Mrs. AMBREEN NASEEM KHAWAJA---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3373-Q of 2014, decided on 26th December, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Aggrieved person---Filing of constitutional petition through attorney---Scope---Quashing of FIR was sought by real mother of accused---Validity---Attorney was real mother of petitioner and she was competent to file proceedings for quashing of FIR registered against her daughter in her absence.

Province of East Pakistan and another v. Hiralal Agarwala PLD 1970 SC 399; Muhammad Ashafaq alias Chief and 18 others v. The State 1998 PCr.LJ 1486 and Aftab Ahmad Khan Sherpao v. The Governor, N.-W.F.P. and others PLD 1990 Pesh. 192 rel.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---High Court can exercise its inherent jurisdiction in three situations: (a) to give effect to any order under Criminal Procedure Code, 1898; (b) to prevent abuse of process of any Court, and (c) or otherwise to secure the ends of justice.

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

----S. 363--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Kidnapping---Family dispute---Parties were close relatives and just to settle score upon family dispute, FIR in question was registered against lady member of family---Validity---High Court observed that trend to settle civil disputes by exercising pressure of criminal proceedings was on high, which was nothing but exploitation---High Court being custodian of Fundamental Rights of citizens was under obligation to provide shield against any invasion made on guaranteed Constitutional Rights and to protect subject from discrimination, exploitation colourable exercise of authority, bolted actions, mala fide and stinking proceedings---High Court declared the FIR to be illegal, unlawful, unprecedented, sham, result of colourable exercise of authority, abuse of process of law, tainted with mala fide, ulterior motives, a device of exploitation without jurisdiction and outcome of arbitrary exercise of authority and the same was quashed---Petition was allowed in circumstances.

1996 SCMR 186; 2006 SCMR 276; PLJ 2011 SC 1932(sic.); Zahid Iqbal v. The State PLD 1991 SC 575; Muhammad Aslam and others v. The State 1972 SCMR 194 and Faisal Jameel v. The State 2007 MLD 355 rel.

Tariq Mehmood Jehangiri for Petitioner.

Syed Husnain Ibrahim Kazmi, DAG.

Haseeb Muhammad Chaudhry and Yousaf M. Qureshi, Standing Counsels.

Kaiser, S.-I.

Dr. Babar Awan, Advocate Supreme Court for Respondents Nos.5 and 6.

2015 P Cr. L J 563

[Islamabad]

Before Athar Minallah, J

SOHAIL YOUNAS---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.759-B of 2014, decided on 15th January, 2015.

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

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17, 18 & 22---Penal Code (XLV of 1860), S.109---Sending people abroad on fake and forged documents, abetment--- Bail, refusal of--- Sufficient incriminating material was on record to connect accused to the offences for which accused had been charged---Illegal business of inducing innocent and desperate citizens to pay substantial amounts in return for sending them abroad, arranging forged documents and facilitating them illegally; in obtaining visas from foreign missions, had become a menace throughout the country---Such illegal business on the one hand deceived innocent citizens robbing them of their hard earned money, while on the other; it had tarnished the image of Pakistan internationally---In the present case, sufficient material was on record for refusing bail to accused; and treating the offence as falling within the prohibitory clause under S.497(1), Cr.P.C.---Accused contended that when the law provided for an alternate sentence of fine, accused should be entitled to bail as of right, and that offence would fall outside the prohibitory clause of S.497(1), Cr.P.C.---Validity---If that proposition was accepted as a principle, or made a rule, then sentence of 14 years' imprisonment provided for the offence would have to be ignored at the bail stage, even in cases in which there was sufficient incriminating material on record for forming a tentative opinion---It would also give rise to an anomaly, because the same principle would become applicable and followed, even in those cases where the alleged acts of accused attracted more than one offence under a statute, falling under the prohibitory and non-prohibitory clauses---Offence attracting a lesser sentence; and falling within the non-prohibitory clause, would have to be considered, regardless of the facts and circumstances of the case---Principle that when a person was charged under two different provisions of distinct statutes for offences, which were alike and similar in nature, then the trial was to proceed against him under the statute which provided the lesser punishment for the offence alleged to have been committed, was recognized in law---Said principle was distinct, having no nexus with the present case, and could neither be made applicable nor extended to cases where the alternate sentences were provided for an offence under the same statute---Bail was refused, in circumstances.

Muhammad Sharif v. State 2014 PCr.LJ 297; Maqsud v. The State 2012 YLR 2511; Sher Ahmad v. The State PLD 1993 Pesh. 104; Muhammad Bilal v. State 2014 PCr.LJ 429; Arshad Javed v. The State 2003 MLD 1073; Muhammad Younus and another v. The State 2001 PCr.LJ 157 and Murad Ali Shah v. The State 2004 PCr.LJ 925 ref.

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

----S. 497---Bail, allowing/refusing of---Principles---Consideration of bail was within the realm of the discretion of court, which was to be exercised in accordance with the settled principles---Consideration for refusing or allowing bail, essentially rested on the facts and circumstances in each case---If alternative sentences had been provided for an offence, which included a fine, then the courts would form an opinion, based on the material on record and the facts of the case---Fact that a fine was provided as an alternate sentence, would be one of the several factors to be considered at the bail stage---Legislative intent of providing an alternative sentence, would be defeated, if regardless of considering the facts of the case, and the incriminating material on record, the lesser sentence, such as a fine, would, as a rule, entitle accused to bail---Mere fact that alternate sentence of fine had been provided for an offence would not take it out of the ambit of prohibitory clause, if one of the sentences was imprisonment for more than ten years---If the court would form a tentative opinion that there was sufficient incriminating material against accused, then allowing bail as a rule, because an alternate sentence of fine had been provided, would defeat the intention of the legislature of providing the sentence and purpose of providing a sentence bringing the offence within the prohibitory clause of S.497(1), Cr.P.C. would be frustrated---Alternate sentence provided for an offence, was to be considered in the light of the facts and circumstances in each case---Where one of the alternate sentences provided for the offence in the statute fell within the prohibitory clause, the court, would determine whether a case was made out for the grant of bail---High Court, declined to concur with the proposition that, if an offence, provided for a higher sentence falling in the prohibitory clause, and an alternate sentence of fine, then as a rule or principle, the lesser sentence, was to be considered for the purpose of bail, and the former was to be excluded from consideration.

Muhammad Atif Nawaz Khokhar for Petitioner.

Malik Zahoor Ahmad Awan, Standing Counsel.

Atta ur Rehman, Inspector FIA with record.

2015 P Cr. L J 576

[Islamabad]

Before Athar Minallah, J

MUHAMMAD ZUBAIR and others---Petitioners

versus

SENIOR SUPERINTENDENT OF POLICE and others---Respondents

Writ Petition No. 172 of 2015, decided on 10th February, 2015.

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

----S. 405---Criminal breach of trust---Pre-condition---For attracting offence defined as 'criminal breach of trust' under S.405, P.P.C., there must be an 'entrustment' of property and thereafter that property should have been alienated, disposed-of, misappropriated or converted in the manner specified in the provision.

Jaswantrai Manilal Akhaney v. The State of Bombay AIR 1956 SC 575 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court can exercise its powers under Art. 199 of the Constitution to an extent that the same can only be exercised sparingly and under extraordinary and exceptional circumstances.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

(c) Constitution of Pakistan---

----Art. 199--- Penal Code (XLV of 1860), Ss. 405 & 406---Constitutional petition---Quashing of FIR---Criminal breach of trust---Accused invoked constitutional jurisdiction of High Court seeking quashing of FIR on the plea that no offence of criminal breach of trust was made out---Validity---Investigation was not completed and in such circumstances, it could not be overruled that further material might not be collected for proceeding with trial---In the present case, prima facie, the bare perusal of FIR, showed that ingredients of S. 405, P.P.C. were not fulfilled---Facts to the extent of execution of agreement was admitted but the question regarding determination as to whether there was an entrustment of property, as asserted by complainant, could best be left to Trial Court to consider and decide in exercise of its powers which petitioner could invoke by way of availing alternate remedies available under law such as S. 249-A or 265-K, Cr.P.C.---Petition was disposed of accordingly.

Allah Rakhio and others v. The State 2001 PCr.LJ 551; Shah Fahad and another v. The State 2014 YLR 2241; Shaukat Ali Sagar v. Station House Officer, Police Station, Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963; Sh. Naveedur Rehman v. The State and 2 others 2010 PCr.LJ 1340; Seema Fareed and others v. The State and another 2008 SCMR 834; Zulfiqar Mustafa v. Station House Officer and 2 others 2010 PCr.LJ 590; Shevo v. Regional Police Officer, Hyderabad Region, Hyderabad and 15 others PLD 2009 Kar. 24; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598; Muhammad Yaqoob v. Senior Superintendent of Police, Gujranwala and 2 others PLD 2000 Lah. 421; Jaswantrai Manilal Akhaney v. The State of Bombay AIR 1956 SC 575; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Rehmat Ali and others v. Ahmad Din and others 1991 SCMR 185; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 19 and Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Raja Adeeb Ahmed Abbasi for Petitioners.

Ch. Riasat Ali Gondal and Muhammad Ali Bhatti for Respondents.

Malik Zahoor Awan, Standing Counsel.

Muhammad Abbas, Sub-Inspector.

Date of hearing: 29th January, 2015.

2015 P Cr. L J 608

[Islamabad]

Before Athar Minallah, J

Mirza SAEED AKHTAR BAIG---Petitioner

versus

The STATE---Respondent

Criminal Miscellaneous No.500-B of 2014, decided on 21st August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 420, 468, 471, 419 & 34---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, cheating by personation, common intention---Bail, grant of---Further inquiry---Only material implicating accused, was the statement of co-accused---No evidence or incriminating material was available on record to the extent of accused---Only offence, which was attracted to the extent of accused was under S.420, P.P.C., which fell under the purview of non-prohibitory clause of S.497, Cr.P.C.---Whether accused had a role in the 38 files recovered from co-accused, needed further probe---Continued custody of accused was not likely to serve any beneficial purpose---Where offences fell within the non-prohibitory clause, the granting of bail had to be considered favourably as a rule, but could be declined in exceptional cases---Accused was entitled to bail, in circumstances.

Raja Muhammad Younus v. The State 2013 SCMR 669; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Subhan Khan v. The State 2002 SCMR 1797; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

Sardar Abdul Raziq Khan for Petitioner.

Malik Zahoor Awan, Standing Council and Tehseen, S.-I. with record for the State.

2015 P Cr. L J 724

[Islamabad]

Before Shaukat Aziz Siddiqui and Athar Minallah, JJ

SHEREEN GUL alias FATIMA---Petitioner/Appellant

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT-I, ISLAMABAD and others---Respondents

Criminal Revision No. 52 of 2014, decided on 9th September, 2014.

Penal Code (XLV of 1860)---

----S. 365-A---Criminal Procedure Code (V of 1898), S. 540---Qanun-e-Shahadat (10 of 1984), Art.161---Kidnapping for ransom---Re-examination of witness, application for---Application moved by the complainant for his re-examination was accepted by the Trial Court---Validity---Held, in order to reach a just conclusion, it was mandatory for the court to summon a witness to recall and re-examine him, if it appeared just and essential for the decision of the case---After filing of complaint, in the present case, some progress was made during investigation in the case for payment of the ransom amount; and for that purpose, complainant got recorded his statement by narrating the factual aspect regarding mode of payment to the abductor---Deposition of the complainant, to that extent having not been recorded before the Trial Court, it would not amount to fill up any lacuna in the evidence, rather was essential and helpful for reaching the just conclusion of the case---Said material fact was also mentioned in the report under S.173, Cr.P.C.---Law favoured adjudication of case on merit, rather than technicalities; and law should always be interpreted in aid of justice and fairplay---Article 161 of the Qanun-e-Shahadat, 1984, also empowered a judge to put questions, or order for production of documents in order to obtain proper proof of the relevant facts, in any form, at any time from any witness, or from the parties and also cross-examine any witness upon any answer; given in reply to any such question, except some exceptions provided in the order---Impugned order did not result into filling up the lacuna left in the case---No exception could be taken to well reasoned order of the Trial Court, in circumstances.

PLD 1984 SC 95 rel.

Ch. Abdul Khaliq Thind for Petitioner/Appellant.

2015 P Cr. L J 941

[Islamabad]

Before Aamer Farooq, J

NARGIS SULTANA CHOHAN---Appellant

versus

PRESIDING OFFICER and others---Respondents

Criminal Appeal No.30 of 2011, heard on 20th January, 2015.

(a) Islamabad Consumers Protection Act (III of 1995)---

----Ss. 2(1)(2)(3), (5), 6, 8 & 9---"Consumer"---Scope---Dismissal of complaint---User of electricity as consumer---Disconnection of electricity meter---Complaint was dismissed on the ground that appellant being not a "consumer", could not initiate the proceedings under Islamabad Consumers Protection Act, 1995---Validity---Under provisions of S.2(3) of Islamabad Consumers Protection Act, 1995, "consumer" was a person who hired any goods or services for consideration---"Services" as provided in S.2(5) of Islamabad Consumers Protection Act, 1995, included services of any description, which were made available to potential users and included providing of facilities in connection with, inter alia, supply of electrical, or any other form of energy---Respondent company was the supplier of electricity/energy in the area---Appellant being the user of electric supply fell within the definition of "consumer"---Appellant being 'consumer' within the meaning of Islamabad Consumers Protection Act, 1995, could institute proceedings under the Act---Case was remanded to Consumer Court for decision on merits, in circumstances.

PLD 2010 Lah. 95; 2013 CLD 1133 and AIR 1994 SC 787 ref.

(b) Interpretation of statutes---

----While interpreting a legislation, which was to benefit the society, a positive approach was to be adopted.

Appellant in person.

Ahsan Hameed Dogar for Respondents.

Date of hearing: 20th January, 2015.

2015 P Cr. L J 1058

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

ABDUL QAYYUM---Petitioner

versus

FEDERATION OF PAKISTAN and 5 others---Respondents

Writ Petition No. 879 of 2015, decided on 8th April, 2015.

Islamabad High Court Act (XVII of 2010)---

----Ss. 6 & 9---Criminal Procedure Code (V of 1898), Ss. 381 & 389---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 32---Constitution of Pakistan, Art.199---Constitutional petition---Death warrant, issuance of---Petitioner sought suspension of death warrant of his brother on the plea that it was not issued by Court which imposed sentence---Validity---At the time of awarding sentence, Court at Islamabad did not exist and Court at Rawalpindi had jurisdiction over the matter, therefore, it awarded the sentence---Court at Islamabad had become Court of competent jurisdiction with respect to all matters falling under Anti-Terrorism Act, 1997, within the territory of Islamabad, therefore, was competent to pass all orders that were necessary to execute sentence awarded with respect to case under Anti-Terrorism Act, 1997, within the territory of Islamabad---Relevant provision of law was S.381, Cr.P.C. because in S. 389, Cr.P.C. the word used had been "Judge or his successor in interest", however no such word existed in S. 381, Cr.P.C.---Because of difference in words used in both the provisions, Anti-Terrorism Court at Islamabad was competent to issue death warrants---No vested right was available to petitioner or condemned prisoner to have death warrant set aside on the basis of such technicality---High Court declined to suspend death warrant as there was no compromise between the parties---Petition was dismissed in circumstances.

Rana Kashif Saleem Arfaa for Petitioner.

Mian Abdul Rauf, Advocate-General for Respondents.

2015 P Cr. L J 1340

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

ASAD JAVED---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Interior and others---Respondents

W. P. No. 4394 of 2014, decided on 24th April, 2015.

Transfer of Offenders Ordinance (XXXVII of 2002)---

----Ss. 9(2) & 13---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Penal Code (XLV of 1860), S. 57---Constitution of Pakistan, Art. 199---Constitutional petition---Conviction by foreign court---Reduction in sentence---Scope---Remissions, entitlement of---Petitioner was convicted by Court in United Kingdom for transporting 195 kilograms of cocaine (drug) and was sentenced to 25 years of imprisonment---After serving out about six years in foreign prison he was transferred to Pakistan to serve out remaining sentence---Petitioner sought reduction in his sentence on the plea that in Pakistan sentence for the offence he was convicted was lesser than that was imposed by foreign Court and also claimed to be entitled to remissions in his sentence---Validity---Where quantity of narcotic drug had exceeded 10 kilograms, the proviso to S.9(c) of Control of Narcotic Substances Act, 1997, mentioned that punishment would not be less than imprisonment for life---Quantity of narcotic drug involved was 195 kilograms, was above the specified 10 kilograms, therefore, he would not have been punished with lesser sentence---Imprisonment for life in Pakistan, under S.57, P.P.C. was reckoned as equivalent to 25 years---Sentence awarded to petitioner by foreign Court could not be termed excessive or incompatible with any law of Pakistan---Reduction of sentence on the basis of foreign laws was not tenable as those laws were not enforceable in Pakistan and through S. 9(2), Transfer of Offenders Ordinance, 2002, after transfer of convict to Pakistan the sentence was enforced in accordance with laws of Pakistan---No distinction was made by S.9(2) of Transfer of Offenders Ordinance, 2002, between period served by transferred offender in sending countries or the period was required to be served in Pakistan---Sentence was taken as a whole and for enforcement it remained subservient to Pakistani law--- Petitioner was entitled to avail remissions allowed in Pakistan for whole sentence period i.e. period served in foreign country as well in Pakistan---High Court directed the authorities to re-issue Roll of Sentence after going through the record---Petition was disposed of accordingly.

Imran Ali v. Province of Sindh and others 2007 PCr.LJ 1363; Dr. Viktor Hacker v. Dr. Shahida Mansoor and others PLD 2013 Isl. 34; Muhammad Iqbal v. Province of Sindh through Secretary, Home Department and others PLD 2011 Kar. 32; M. Afzal Nadeem v. Province of Sindh and others PLD 2014 Sindh 132; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; The State through Force Commander v. Abdul Qahir PLD 2002 SC 321; Akhtar Hussain v. The State 2005 PCr.LJ 1958; Khawar and another v. The State 2003 PCr.LJ 811; Ghulam Murtaza v. The State PLD 1998 SC 152 and Shah Hussain v. The State PLD 2009 SC 460 ref.

Sher Afzal Khan Marwat for Petitioner.

Fazal-ur-Rehman Khan, Deputy Attorney-General with Muhammad Iqbal, Assistant Superintendent Jail Adyala, Rawalpindi and Rana Naveed Anwar, AD FIA for Respondents.

Date of hearing: 11th February, 2015.

2015 P Cr. L J 1551

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

UMER HAYAT---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and others---Respondents

Writ Petition No.3704 of 2012, decided on 8th June, 2015.

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

---Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 182---Constitution of Pakistan, Art. 199---Constitutional petition---FIR, registration of---Scope---Disputed document---Petitioner filed application for registration of case against the accused but same was dismissed by Ex-Officio Justice of Peace---Validity---Ex officio Justice of Peace was not required to form his opinion with regard to merits of the case---If genuineness or otherwise of the disputed document was still a mystery, it could only be resolved when FIR was lodged and investigation was conducted---Formation of opinion by Ex-Officio Justice of Peace was not in accordance with law without lodging of FIR---Ex-Officio Justice of Peace should have confined himself only to the extent of issuance of direction in the case if it appeared from the statement of complainant that cognizable offence was made out---Ex-Officio Justice of Peace had not put himself into controversy of making application and denial of police by receiving the same for lodging FIR---If SHO submitted a report that application was never moved even then it would not be incumbent upon Ex-Officio Justice of Peace to believe the same in toto---Ex-Officio Justice of Peace had to form his own opinion---Report of police did not mean that same was called to ascertain the real fact about the incident but same was called merely to ascertain whether application was moved or not---Direction could be issued for lodging FIR in case of denial by SHO---If allegations levelled in the FIR were proved to be false then party adversely affected could be compensated by initiating proceedings under S.182, P.P.C.---If FIR was not lodged then there was no compensatory process---Material required for the purpose of fair investigation had to be collected by lodging FIR---Registration of FIR was an expeditious way to provide justice whereas direct complaint could be delayed for decades and was not to be considered as prompt justice---Material could be detected during investigation to prove into direct complaint---If an opinion was formed that police was not going to support the complainant then there was a remedy to approach superior authorities for either party for fair and impartial investigation---High Court directed the SHO to record the statement of complainant and if from the same it appeared that cognizable offence was made out then FIR be registered promptly by applying relevant penal sections---If false accusations were levelled in FIR then action in accordance with law be taken by reporting the matter to the concerned Magistrate under Section 182, PPC---Constitutional petition was accepted accordingly.

PLD 2007 SC 539 and PLD 2009 Lah. 232 ref.

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

----S. 4(l)---"Investigation"---Meaning and scope---Investigation was meant collection of evidence helping to form an opinion by the Investigating Officer for submission of final report---Investigation of case did not mean that after registration of FIR the accused must be arrested---Investigating Officer was not supposed to arrest the accused in any of the circumstances after lodging FIR and same might be affected after collecting tangible evidence against the accused.

Sher Afzal Khan for Petitioner.

Raja Khalid Mahmood Khan, Standing Counsel with Ghulam Abbas, SI with record.

2015 P Cr. L J 1628

[Islamabad]

Before Muhammad Anwar Khan Kasi, C J

Dr. TAQDEES NAQASH---Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE and others---Respondents

Writ Petition No.1049-Q of 2013, decided on 30th June, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Registration of criminal case---Professional negligence---Two remedies, availing of---Petitioners were medical practitioners who were alleged to have committed professional negligence resulting into death of complainant's wife---Earlier, complainant made a complaint to Pakistan Medical and Dental Council and thereafter filed complaint before Ex-officio Justice of Peace, who directed police to register criminal case against petitioner---Validity---Initially complainant moved Pakistan Medical and Dental Council through a written complaint, where an inquiry was conducted and Disciplinary Committee had held petitioner negligent and was issued censure with further direction to the hospital to improve their system---No impediment existed to initiate criminal or civil action after inquiry of the Council, when petitioner was found guilty to some extent and was awarded penalty of censure---Specific allegations were made in complaint which required probe and investigation to ascertain factum of mala fide or mens rea---High Court declined to exercise discretion in favour of petitioner and normal procedure provided in Criminal Procedure Code, 1898, could not be halted---Petition was dismissed in circumstances.

Shifa International Hospital v. PM&DC 2011 CLC 463 distinguished.

Yasmin Gul Khanani and another v. Tariq Mehmood and 2 others 2013 YLR 2716; Aftab Ahmed v. The State and 4 others 2014 MLD 795; Ret. Brig. Ijaz Akbar and another v. The State and another 2013 MLD 250; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Aslam v.Dr. Imtiaz Ali Mughal and 4 others PLD 2010 Kar. 134 ref.

Zaheer Bashir Ansari ASC for Petitioner.

Fazal-ur-Rehman Khan Niazi, D.A.G. with Falak Sher SI for Respondents Nos. 1 and 2.

Ch. Abdul Aziz Advocate Supreme Court for Respondent No.3.

Date of hearing: 15th April, 2015.

2015 P Cr. L J 1644

[Islamabad]

Before Athar Minallah, J

Mst. NASREEN AKHTAR---Petitioner

versus

JUSTICE OF PEACE/LEARNED ADDITIONAL SESSIONS JUDEGE and 2 others---Respondents

Writ Petition No.3186 of 2012, decided on 1st July, 2015.

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

----S.154---Registration of First Information Report---Procedure---Act of entering information in a book at police station is known as registration of First Information Report.

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

----S. 154---Registration of FIR---Preliminary inquiry---Scope---Compliance with S.154, Cr.P.C. is a mandatory obligation and can neither be refused nor delayed on the ground of conducting inquiry.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of FIR---Justice of Peace, duty of---Preliminary inquiry, direction for---Petitioner was unsuccessful in getting her FIR registered against respondents and approached Justice of Peace in such regard---Justice of Peace directed Chairman Capital Development Authority to inquire into the matter---Validity---Justice of Peace was only required to examine whether information received disclosed a cognizable offence or not---If answer was in affirmative, then the only course left was to direct concerned in charge of police station to record FIR---Justice of Peace instead of taking relevant matters into consideration, dismissed petition on the ground that the Chairman Capital Development Authority was to conduct inquiry regarding affidavit filed on behalf of petitioner, which she alleged to be forged/fake---Power to direct Chairman Capital Development Authority to conduct inquiry was not vested with Justice of Peace---High Court, in exercise of Constitutional jurisdiction, set aside the order passed by Justice of Peace and remanded the matter to him for deciding application under section 22-A, Cr.P.C. afresh---Petition was allowed accordingly.

Asal Jan Khan v. The State through Additional Advocate General, Bannu and 8 others 2012 PCr.LJ 1797; Haji Rehmatullah and another v. The State 2012 PCr.LJ 288; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Muhammad Yousuf v. Inspector-General of Police and 4 others PLD 1997 Lah. 135; Muhammad Ameer Khan v. Khisro Perez and 2 others 2012 PCr.LJ 981; Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge (East) at Karachi and 2 others 2007 PCr.LJ 909; Ghulam Fareed v. Station House Officer, Police Station Sangi and another 2013 PCr.LJ 117 rel.

Khurram Mehmood Qureshi for Petitioner.

Mansoor Khan Abbasi and Malik Zahoor Awan, Standing Counsel for Respondent.

Date of hearing: 8th June, 2015.

2015 P Cr. L J 1651

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SHABBIR HUSSAIN---Petitioner

versus

NOOR RAHMAN and another---Respondents

Criminal Revision No.22 of 2015, decided on 19th June, 2015.

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

----S. 221---"Commencement of trial"---Scope---Commencement of trial means the day when charge is framed under Chap. XIX, Cr.P.C.

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

----Ss. 221 & 529---Charge not framed properly---Irregular proceedings---Entire proceedings of trial cannot be vitiated merely for the reason that charge was not framed properly either by-passing procedural law or for any other reasons.

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

----S. 5---Criminal Procedure Code (V of 1898), Ss.200, 201 & 204---Illegal dispossession---Issuance of process---Cursory statement non-recording of---Plea raised by accused was that witnesses whose cursory statements were not recorded and copies of the same were not provided to him, such person could not appear as prosecution witness---Validity---Statement if not recorded in preliminary inquiry or during investigation as cursory statements, could be done as provided by S.201, Cr.P.C.---High Court vitiated proceedings of Trial Court before or after framing of charge---High Court directed Trial Court to commence proceedings from such stage by either recording cursory statement of prosecution witnesses in question or could direct Station House Officer concerned to conduct investigation and submit such report before the Court---Revision was allowed accordingly.

Mian Umer Riaz for Petitioner.

Shafqat Abbas Tarar for Respondents.

Raja Khalid Mahmood Khan, Standing Counsel.

2015 P Cr.L J 1667

[Islamabad]

Before Athar Minallah, J

ZOHRA PIRZADA and 3 others---Petitioners

versus

S.S.P. ISLAMABAD and 5 others---Respondents

Writ Petition No.4981-Q of 2014, decided on 1st July, 2015.

(a) Constitution of Pakistan---

----Art. 199--- Penal Code (XLV of 1860), Ss. 193, 420, 468 & 471---Criminal Procedure Code (V of 1898), Ss 173, 195 (1)(c) & 476---Constitutional petition---Quashing of proceedings---False evidence, cheating, forgery and using forged document--- Respondent got FIR registered against petitioners alleging that they prepared forged documents which were produced in civil court during trial---Plea raised by petitioners was that for registration of FIR procedure provided under S.195(1)(c), Cr.P.C. was to be adopted---Validity---Court could take cognizance upon issuance of process after report under S.173, Cr.P.C. had been submitted which had reference to that stage when Court had consciously applied its mind and ordered for an inquiry or proceeded with trial of case with a view to determine guilt of accused---All steps or stages prior to issuance of process or prescribed under Chap. XIV of Part-V, Cr.P.C. preceded the stage when a Court could take 'cognizance'---Scope of Ss.195 and 476, Cr.P.C. was restricted to the stage when Court would take 'cognizance' and there was no clog on any of the steps or stages preceding it---Competent Court would take cognizance subject to the condition precedent stipulated under S.195, Cr.P.C. read with S.476, Cr.P.C.---High Court declined to quash F.I.R. registered against respondents--- Petition was dismissed in circumstances.

Ch. Nadir Khan and Zafar Ahmad v. The State 1988 PCr.LJ 2263; State Government, Madhya Pradesh v. Hifzul Rehman and others" AIR (39) 1952 Nagpur 12; Zafar Iqbal v. The State 1985 PCr.LJ 2619; Muhammad Suleman and others v. Abdur Razzaque and others PLD 2005 Lah. 386; Miandad v. The State and another 1992 SCMR 1286; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; Muhammad Rizwan v. The State and 3 others 2007 PCr.LJ 78; Muhammad Alam and 3 others v. The State PLD 1967 SC 259; Alam Din v. State PLD 1973 Lah. 304; Muhammad Nawaz Khan v. Noor Muhammad and others PLD 1967 Lah 176; Ghulam Qasim v. Superintendent, District Jail, Multan and another 1993 PCr.LJ 2066; Manu alias Menthar and others v. The State PLD 1964 Kar 34; Ghulam Muhammad and 3 others v. The State PLD 1979 Quetta 1; Wazir v. The State PLD 1962 Lah. 405; Gopal Marwari and others v. Emperor AIR 1943 Pat. 245; The State v. Samiullah Khan and others PLD 1959 Kar. 157; R.R. Chari v. The State of Uttar Predesh AIR 1951 SC 207; Industrial Development Bank and others v. Mian Asim Farid and others 2006 SCMR 283; Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892; Federation of Pakistan through Secretary, M/O Law, Justice and Parliamentary Affairs, Islamabd v. Zafar Awan, Advocate High Court PLD 1992 SC 72; Muhammad Bashir v. S.H.O. Okara Cantt. and others PLD 2007 SC 539 and Muhammad Shafi v. Deputy Superintendent of Police, Narowal and 5 others PLD 1992 Lah. 178 ref.

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

----S. 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Principles---High Court is not vested with the power to quash FIR under S.561-A, Cr.P.C. on the grounds of mala fide or disclosing a civil liability---Resort to provisions of S.561-A, Cr.P.C. or Art.199 of the Constitution for quashing a criminal case is an extraordinary remedy, which can only be granted in exceptional circumstances---As a general rule, power under Art.199 of the Constitution cannot be substituted for trial, nor can any deviation be made from normal course of law---Consideration to be kept in view for quashing of a criminal case is whether continuance of proceedings before Trial Court would be a futile exercise, wastage of time and abuse of process of Court and whether an offence on admitted facts is made out or not--- Exercise of powers and jurisdiction under Art.199 of the Constitution is discretionary in nature, however the same are to be exercised in good faith, fairly, justly and reasonably, having regard to all relevant circumstances---While considering quashing of criminal case in exercise of powers vested under Art.199 of the Constitution, High Court is required to take into consideration various alternate remedies available to a petitioner before Trial Court, inter alia under Ss.249-A, Cr.P.C. and 265-K, Cr.P.C.---Criminal case registered cannot be quashed after Trial Court has taken cognizance of a case, as the law has provided an aggrieved person with efficacious remedies for seeking a premature acquittal, if there is no probability of conviction or a case is not made out---Prior to exercising jurisdiction under Art.199 of the Constitution, High Court has to be satisfied that Trial Court has neither passed an order nor any process issued---Court exercise utmost restraint in interfering with or quashing investigations already in progress, pursuant to statutory powers vested in police or other authorities---Court do not interfere in the matters within the power and jurisdiction of police, particularly when law imposes on them duty to inquiry or investigate.

Director General, Anti Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Rehmat Ali and others v. Ahmad Din and others 1991 SCMR 185; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18 and Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another PLD 1971 SC 677 rel.

(c) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional jurisdiction/inherent jurisdiction of High Court---Scope---Quashing an FIR or interference in investigation is limited while exercising powers and jurisdiction by High Court under Art.199 of the Constitution and S.561-A, Cr.P.C.---Principles and law detailed.

Following are the principles and law for exercising jurisdiction under Art.199 of the Constitution for interference in investigation and quashing an FIR.

(i) The High Court is not vested with the power to quash an FIR under S.561-A of Cr.P.C., on the grounds of mala fide or disclosing a civil liability.

(ii) Resort to the provisions of S.561-A of Cr.P.C., or Art.199 of the Constitution for quashing a criminal case is an extraordinary remedy, which can only be granted in exceptional circumstances.

(iii) As a general rule powers under Art.199 of the Constitution cannot be substituted for the trial, nor can any deviation be made from the normal course of law.

(iv) The Consideration to be kept in view for quashing of a criminal case is whether the continuance of the proceedings before the Trial Court would be a futile exercise, wastage of time and abuse of the process of the court, and whether an offence on the admitted facts is made out or not.

(v) The exercise of powers and jurisdiction under Art.199 of the Constitution is discretionary in nature; however, the same are to be exercised in good faith, fairly, justly and reasonably, having regard to all relevant circumstances.

(vi) While considering quashing of a criminal case in exercise of powers vested under Art.199 of the Constitution, the High Court is required to take into consideration the various alternate remedies available to a petitioner before a Trial Court, inter alia, under Ss.249-A and 265-K of Cr.P.C.

(vii) Besides the above, the other alternate remedies available under the law are as follows:-

a. To appear before the Investigating Officer to prove their innocence.

b. To approach the competent higher authorities of the Investigating Officer having powers vide S.551 of Cr.P.C.

c. After completion of the investigation, the Investigating Officer has to submit the case to the concerned Magistrate, and the concerned Magistrate had the power to discharge them under S.63 of the Cr.P.C. in case of their innocence.

d. In case he finds the respondents innocent, he would refuse to take cognizance of the matter.

e. Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate.

f. There are then remedies which are available to the accused person who claims to be innocent and who can seek relief without going through the entire length of investigation.

(viii) A criminal case registered cannot be quashed after the Trial Court has taken cognizance of a case as the law has provided an aggrieved person with efficacious remedies for seeking a premature acquittal, if there is no probability of conviction or a case is not made out.

(ix) Prior to exercising jurisdiction under Art.199 of the Constitution, the High Court has to be satisfied that the Trial Court has neither passed an order nor any process issued.

(x) Courts exercise utmost restraint in interfering with or quashing investigations already in progress, pursuant to statutory powers vested in the police or other authorities. Courts do not interfere in the matters within the power and jurisdiction of the police, particularly when the law imposes on them the duty to inquire or investigate. [pp. 1678, 1679] B, C & D

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.193, 420, 468 & 471---False evidence, cheating, forgery and using forged document---Bail, cancellation of---Accused persons were granted pre-arrest bail by Court of competent jurisdiction and complainant sought cancellation of the same---Validity---Bail once granted could not be cancelled only if the order granting bail on the face of it was perverse, patently illegal, erroneous, factually incorrect resulting in miscarriage of justice, passed in violation of principles for grant of bail, or concession of bail was misused---High Court declined to interfere in pre-arrest bail granted to accused persons---Petition was dismissed in circumstances.

The State/Anti Narcotics through Director General v. Rafiq Ahmad Channa 2010 SCMR 580; The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. The State and others 2007 SCMR 482 rel.

Raja Rizwan Abbasi for Petitioners.

Syed Javed Akbar Shah and Saif ul Islam for Respondents.

Malik Zahoor Awan, Standing Counsel.

Date of hearing: 21st April, 2015.

2015 P Cr. L J 1685

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

The STATE---Petitioner

versus

MUHAMMAD ABBASI and others---Respondents

Murder Reference No.6 of 2011, decided on 18th June, 2015.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---FIR was registered promptly---Motive alleged was previous enmity---Firing at the deceased by accused and others, on the roof of under-construction building owned by accused, had been testified by the prosecution witnesses---Said witnesses, along with the complainant after witnessing the incident, had promptly proceeded to the Police Station---Testimony of the widow of the deceased, was credible, and despite being subjected to extensive cross-examination, same could not be shattered---Alleged contradictions in her statement, were not material enough to discredit her statement---Evidence of widow was further corroborated by other prosecution witnesses---Prosecution witnesses were not chance witnesses and had deposed consistently and the suggestion by the defence of false implication of accused was not supported by any thing on record---Testimony of the witnesses to the extent of accused, was sufficiently corroborated through strong evidence---Deceased was established to be not armed---Injuries, allegedly inflicted on the body of accused, remained doubtful and nothing could be placed on record to corroborate the version of accused of being attacked by the deceased---Medical evidence and recoveries collected from the place of occurrence, had established that more than one weapon was used qua the injuries of the deceased---Nothing was on record to corroborate the version taken by accused in his statement recorded under S.342, Cr.P.C.---Medical report sufficiently established the case in favour of the prosecution demolishing the version taken by accused---Prosecution, through credible and confidence inspiring evidence, had established its case beyond reasonable doubt---Conviction and sentence awarded to accused by the Trial Court, were confirmed; and Murder Reference was answered in the affirmative and appeal of accused was dismissed---Nothing having been pointed out from the record to interfere with the acquittal of co-accused, appeal against acquittal of co-accused, was also dismissed, in circumstances.

Noor Ellahi v. The State PLD 1966 SC 708; Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254; Shamir alias Shamla v. The State PLD 1958 SC 242; Khalid Mehmood v. The State 2004 PCr.LJ 984; Nadeem-ul-Haq Khan and others v. The State 1985 SCMR 510; Muhammad Iqbal v. The State 1999 MLD 1557; Safdar Ali v. The Crown PLD 1953 FC 93; Rab Nawaz and others v. The State PLD 1994 SC 858, Hakim Ali and 4 others v. The State and another 1971 SCMR 432; Inayatullah and another v. The State PLD 1966 (W.P) Lah. 8; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Allah Ditta v. The State 1999 YLR 1478; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Ashiq v. The State 1990 PCr.LJ 368; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Ch. Zafar ul Haq and another v. The State PLD 1968 Lah. 437, Gulab and another v. The State 1986 PCr.LJ 1297; Muhammad Mushtaq v. The State PLD 2001 SC 107; Shaukat Ali v. The State 2005 MLD 1470; Kashif Saddique and 2 others v. The State 2008 PCr.LJ 1039; Muhammad Sarfraz v. The State through P.G Punjab and another PLD 2013 SC 386; Mazhar Hussain v. The State 2002 PCr.LJ 614, Mawaz Khan v. Muhammad Iqbal and 4 others 2001 PCr.LJ 396; Mst. Naziran v. Saifal and others 1998 PCr.LJ 1689; Fazal-E-Haq v. The State 2015 PCr.LJ 189; Muhammad Ahmed v. The State 2009 SCMR 1133; Anwar Shamim and another v. The State 2010 SCMR 1791 and Khadim Hussain v. The State 2010 SCMR 1720 ref.

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

----Art. 121---Burden of proving that case of accused comes within exceptions---Onus to prove the guilt of an accused beyond reasonable doubt throughout the trial, would rest on the prosecution---Onus or burden, would not shift to accused, except in cases falling under Art.121 of Qanun-e-Shahadat, 1984---If an accused would raise the plea of self-defence of his person or property and wanted to bring his case within one of the exceptions, then the onus for establishing the plea, would lay upon him.

Farid v. The State PLD 2002 SC 553; Muhammad Asghar alias Nannah and another v.. The State 2010 SCMR 1706 and Talib Hussain v. The State 1995 SCMR 1538 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Capital punishment, could also be awarded, if circumstantial evidence was strong enough to persuade the court, that the person charged with the offence had committed the same---Circumstantial evidence, must be clear, cogent and convincing that facts could not be accounted for on any other rational hypothesis than the guilt of accused---Even when no witnesses were available, simpliciter denial on the part of accused, was not sufficient to nullify circumstantial evidence, which otherwise directly connected him with the commission of the charge.

Muhammad Latif v. The State PLD 2008 SC 503; Akbar Ali v. The State 2007 SCMR 486 and Talib Hussain v. The State 1995 SCMR 1538 rel.

(d) Criminal trial---

----Interested witness---Statement of---Scope---Relationship of a witness, by itself, was not sufficient to discard the statement of an interested witnesses.

(e) Maxim---

----"Falsus in uno falsus in omnibus", had been discarded by the courts in Pakistan.

Tawaie Khan and another v. State PLD 1970 SC 13; Khairo and another v. State 1981 SCMR 1136; Irshad Ahmad and others v. State PLD 1996 SC 138 and Muhammad Sharif v. State PLD 2009 SC 709 ref.

(f) Words and phrases---

----"Reasonable doubt", interpreted and elucidated.

Muhammad Asghar Ilyas Nanna v. State 2010 SCMR 1706 ref.

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

----S. 302(b)---Qatl-i-amd---Sentence---Question of alternate sentence---Two sentences as provided in S.302(b), P.P.C., were alternate to one another---Awarding one or the other sentence, would essentially depend upon the facts and circumstances of each case---No mitigating circumstances, or single doubt or ground was, in the present case in favour of awarding the alternate sentence of life imprisonment to accused---Admitted enmity existed between the deceased and accused---Deceased was taken away while travelling with his wife---Murder took place on the roof of the under construction house of accused---Plea of accused was that the deceased had trespassed his property, climbed the temporary ladder, attacked him and fired at him---Except for statement of accused under S.342, Cr.P.C., no other evidence, lent any support to that version of accused---Witnesses remained consistent, and their credibility remained unshaken---Injuries on the deceased, nature and condition of the crime scene, the articles collected, motive and all other surrounding circumstances had been proved by the prosecution beyond a reasonable doubt---Chain of guilt had been found unbroken---Prosecution established the suit of accused in the gruesome and pre-meditated murder of the deceased---By no stretch of imagination, evidence on record had disclosed any mitigating circumstances, so as to give a reason to consider interference in the sentence awarded by Trial Court to accused---Impugned judgment was well reasoned, and the court had taken all the relevant matters into consideration before passing the sentence---Murder Reference, was answered in the affirmative and sentence of death awarded to accused by the Trial Court, was confirmed, in circumstances.

Hassan and others v. The State and others PLD 2013 SC 793; Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Dadullah and another v. The State 2015 SCMR 856; Noor Muhammad v. The State 1999 SCMR 2722 and Muhammad Yasin and 2 others v. The State 2002 SCMR 391 ref.

Sardar Muhammad Ishaq Khan for Petitioner.

Muhammad Ilyas Siddiqui and Mian Abdul Rauf, Advocate-General, Islamabad for Respondent.

Date of hearing: 16th March, 2015.

2015 P Cr. L J 30

[Sindh]

Before Riazat Ali Sahar and Abdul Rasool Memon, JJ

NOOR MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-43 of 2010, decided on 10th October, 2013.

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

----S. 154---First Information Report---Object and scope---Object of F.I.R. was to set the machinery of law into motion---Information of the commission of a cognizable offence was given to Police by informant, which then would proceed to unearth the real facts thereof by investigating the matter and thereafter submit the result before the court--- All that was to be done, was with a two fold object, firstly, no offender should go unpunished, and no innocent should be put in jeopardy; and secondly, the society should be free of crimes by creating deterrence---F.I.R. was merely intended to move the Police to undertake the exercise of unfolding real facts---Incorporation of the substance, narrated by the informer, regarding cognizable offence having been committed under S. 154 of Cr.P.C., was the requirement of law; and deviation therefrom would expose the Police Officer guilty of disobedience of direction of law and he could be prosecuted as such---F.I.R., itself would not become invalid because of omission of the Police and its value, would not diminish thereby.

Dalip Singh and others v. The State of Punjab AIR 1953 SC 364; Mazhar Hassan Naqvi v. Dr. Zafar H. Zaidi, VC, Karachi University PLD 2001 Kar. 269; Gulzar Khan v. The State PLD 1982 AJ&K 28; Rabia Bibi v. The State 1968 PCr.LJ 350; Nazir Ahmed and another v. The State 1976 PCr.LJ 993; Ratanchand Radhalkisondas v. The State AIR 1960 Bom. 146; West Bangal Press Workers and Employees v. Art Union Printing Works Private Ltd. and others AIR 1962 Cal. 641 and Khadim Ali and another v. The State 1996 SCMR 1855 rel.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Ocular account was submitted by three officials, and such account of the evidence had gone unshaken, despite said witnesses were subjected to the lengthy cross-examination---Entries appeared to have been produced to substantiate the movement of said officials, and report of chemical analyst had also been produced, which had established that the parcel sent to him was charas---Truck driven by one of accused persons, having been found to be loaded with contraband material, possession thereof could not be said that same was not to be with accused persons, who had been controlling the Truck---Not necessary that the driver should also be the owner of the vehicle, or that only owner of the vehicle was liable, and the driver could not be saddled with liability---Driver who was in actual possession of the vehicle and the material, was responsible; the owner of the truck could also be guilty in some cases, but not necessarily in every case---Officials were also good witnesses like others, and their evidence could not be brushed aside merely for the reason of their being officials; they could be disbelieved, if they were shown to be inimical, and interested---No animosity was alleged against the witnesses---In the absence of such motive, there was no reason to discard the testimony of the officials---Evidence having gone unshaken, mere delay in sending the sample could hardly be of any importance---Case against accused persons, having been proved, they were rightly convicted and sentenced.

Muhammad Aslam v. The State 2011 SCMR 820; Amjad Ali v. The State 2012 SCMR 577; Muhammad Sadiq v. The State 2005 SCMR 1689 and Ikram Hussain v. the State 2005 SCMR 1487 ref.

Afsar Khan v. The State 2008 SCMR 1219; Shah Muhammad v. The State 2012 SCMR 1276; Muhammad Sadiq's case 2005 SCMR 1689; Muhammad Noor and others v. The State 2010 SCMR 927 and Kashif Amir v. State PLD 2010 SC 1052 rel.

Fiaz Muhammad Larik for Appellant No.1.

Athar Abbas Solangi for Appellant No.2.

Mushtaque Ahmed Korejo, Standing Counsel along with Inspector Custom Check Post, Jaccobabad for the State.

Date of hearing: 28th August, 2013.

2015 P Cr. L J 51

[Sindh]

Before Abdul Rasool Memon, J

TUFAIL AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-117 of 2013, decided on 23rd September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.468, 477-A & 120-B---Prevention of Corruption Act (II of 1947), S. 5(2)---Forgery for purpose of cheating, falsification of accounts, criminal conspiracy, criminal misconduct---Bail, grant of---Abscondment of accused after grant of pre-arrest bail and on arrest having served sufficient punishment in jail---Scope---Accused slipped away from court during hearing of his pre-arrest bail application, and remained an absconder for nine (9) years before being arrested---Accused had a good case on merits, thus his abscondence should not come in the way of grant of bail---Co-accused, whose case was identical to that of accused had also been admitted to bail---No doubt a fugitive from law lost some of his rights, but he did not lose the right to bail for ever and was entitled to fair and just trial within a reasonable time---Accused remained absconder after grant of pre-arrest bail but since his arrest he had been in jail for more than six months, which was sufficient punishment for him---Accused was granted bail in circumstances.

Dosoo v. The State 2003 PCr.LJ 933 rel.

Ahsan Ahmed Qureshi for Applicant.

Ameer Ahmed Narejo for the State.

Date of hearing: 23rd September, 2013.

2015 P Cr. L J 69

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD KHAN alias MUHAMMAD BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-341 of 2014, decided on 2nd September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Case of further inquiry---Two F.I.Rs.---Failure to record evidence--- Role alleged against accused by women witnesses was restricted to his mere presence at the spot without actively participating in the incident---Even the role alleged in F.I.R. against accused was not supported by any other material available on record---During investigation statements under S.161, Cr.P.C., of women witnesses was not recorded to establish, prima facie, allegations levelled against accused in F.I.R.---Effect---Two F.I.Rs. of same incident with variation was registered at same police station by different complainants which after due investigation were found to be having sufficient material against accused to refer them for trial---Such investigations had made the case against accused to be of further inquiry into his guilt in terms of S. 497(2), Cr.P.C.---Accused was arrested during investigation but no recovery of any incriminating article was effected from him to support prosecution story as narrated in F.I.R. that at the time of alleged incident the accused was armed with weapon--- Bail was allowed in circumstances.

2014 SCMR 27; 2006 PCr.LJ 1611; 2008 YLR 1753; 2012 PCr.LJ 1324 and 2012 SCMR 662 ref.

Rashid Ali Sindhu for Applicant.

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

Complainant in person.

2015 P Cr. L J 78

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM ALI alias ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No. 210 of 2011, decided on 24th December, 2012.

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

----Ss. 561-A & 169---Penal Code (XLV of 1860), Ss. 302, 365, 147, 149, 324, 458, 148 & 504---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting, common object, attempt to commit qatl-i-amd, lurking house-trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, intentional insult with intent to provoke breach of the peace and act of terrorism---Quashing of proceedings---Inherent powers of High Court---Scope---Police submitted report under S. 169, Cr.P.C. before the Judicial Magistrate which was not agreed to by him---Contention of the accused was that the order was non-speaking---Validity---Magistrate had passed the impugned order in a slipshod and hasty manner---Non-speaking orders were to be discouraged and court was to give reasons for passing administrative as well as judicial order---Case was remanded to the Judicial Magistrate for passing speaking order.

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

----S. 169---Deficient evidence---Release of accused---Magistrate was not bound by the police report submitted under S. 169, Cr.P.C., however, he was supposed to give full application of mind and he had to act fairly, justly and judiciously and was to furnish reasonable grounds for 'agreeing' or 'disagreeing' with the Investigation Officer.

2009 PCr.LJ 864 rel.

Fareed Ahmed Dayo and Majid Qamar Rajput for Applicant.

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

Date of hearing: 11th December, 2012.

2015 P Cr. L J 119

[Sindh]

Before Ghulam Sarwar Korai and Naimatullah Phulpoto, JJ

MUHAMMAD SHAMIM and another---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeals Nos. 7 and 9 of 2008, decided on 11th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for extorting property, valuable security, common intention, act of terrorism---Appreciation of evidence---Evidence of the complainant and his brother was trustworthy and reliable for the reasons that they had no motive to falsely implicate accused person in a heinous crime---Payment of ransom was also established by cogent and confidence inspiring evidence---Both accused persons were identified by complainant and his brother in the identification parade---No inherent defect in the evidence of the prosecution witnesses or in the identification parade had been pointed out---Despite lengthy cross-examination, not a single major contradiction had come on record---Delay in lodging of F.I.R. had been fully explained---Approach of the court in the matter like the present case, should always be dynamic and, if the court was satisfied that offence had been committed in the manner in which it had been alleged by the prosecution and the same was proved, the technicalities should be overlooked without causing miscarriage of justice---Plea of accused persons that Police demanded bribe from them and on their refusal they had been challaned in the present case, appeared to be without substance and afterthought; and same had also not been substantiated by producing the defence---Child witness/victim having not understood the questions of the Trial Court, no benefit could be extended to accused persons on the basis of evidence of child witness---Prosecution had proved its case against accused persons beyond any shadow of doubt, and Trial Court had rightly appreciated the evidence according to the settled principles of law---Finding of conviction recorded by the Trial Court against accused persons, required no interference in circumstances.

Sheraz Ahmed Siddiqui for Appellants.

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

Date of hearing: 26th September, 2013.

2015 P Cr. L J 133

[Sindh]

Before Amer Raza Naqvi, J

SIRAJ---Appellant

Versus

The STATE---Respondent

Criminal Revision Application No.54 and M.As. Nos.1762 and 1763 of 2013, decided on 29th October, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possession of illegal weapons---Appeal, disposal of---Disposal of appeal on merits only---Trial Court convicted and sentenced accused under S.13 of Pakistan Arms Ordinance, 1965---Sessions Court (First Appellate Court) disposed of appeal filed by accused against his conviction and sentence for the reason that it had become infructuous as accused had already served out the sentence awarded to him by the Trial Court---Legality---Even after an accused had served out his sentence, appeal could not be disposed of on such ground, and same should have been proceeded and decided on merits---Impugned order of Sessions Court was set aside and case was remanded to the Sessions Court to be decided afresh on merits in accordance with law---Application was disposed of accordingly.

Applicant Siraj produced in custody by Jail Authorities.

Muhammad Iqbal Awan, APG for the State.

2015 P Cr. L J 143

[Sindh]

Before Farooq Ali Channa and Salahuddin Panhwar, JJ

RIAZ AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-85 of 2006, decided on 16th July, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Property was sent to the Chemical Examiner with the delay of three months and five days, and no plausible justification was available on record to show the reasons of said delay---Such aspect was sufficient to cause the dent in the prosecution case---Registration of F.I.R., two days prior to the incident, had indicated the enmity between Police Officials and accused party---False involvement of accused in circumstances, could not be ruled out---Contradictions pointed out by counsel for accused was an admitted fact---Single dent in prosecution case, was sufficient to acquit accused---Miscarriage of justice, could arise from acquittal of the guilty and no less from conviction of the innocent---Impugned judgment whereby the sentence was awarded, was set aside and accused was acquitted by extending him benefit of doubt.

Nazeer Ahmed v. The State PLD 2009 Kar. 191 and Muhammad Aslam v. The State 2011 SCMR 820 ref.

2011 PCr.LJ 1342 and 2001 PCr.LJ 1963 distinguished.

Muhammad Aslam v. The State 2011 SCMR 820 rel.

Azher Hussain Abbasi for Appellant.

Abdul Rasheed Soomro for the State.

Date of hearing: 16th July, 2013.

2015 P Cr. L J 158

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

IRSHAD ALI and another---Appellants

Versus

MUHAMMAD SHAHID and another---Respondents

Spl. Criminal Anti-Terrorism Appeals Nos. 16, 17 and 18 of 2013, decided on 6th December, 2013.

(a) Criminal trial---

----Burden of proof--- "Stare decisis", doctrine of--- Scope---Presumption of innocence---Burden was always upon the prosecution to prove the case beyond shadow of doubt---Such principle, fell within the doctrine of "stare decisis"---Mere heinous nature of offence, was not sufficient to convict accused because, accused would continue with presumption of innocence, until found otherwise at the end of the trial.

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

----Ss. 384, 385 & 386---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Extortion by putting a person in fear of injury, death or grievous hurt, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Allegation against accused persons was that they were demanding "Bhatha", but no proof was available in the shape of any slip/parchi containing the demand of alleged 'Bhatha'---Prosecution witnesses, had nowhere stated that accused persons intentionally put them in fear of death or of grievous hurt---Witnesses had failed to substantiate the charge of extortion through any concrete and confidence inspiring evidence---Prosecution, in circumstance, could not prove the extortion within the meaning of S.386, P.P.C.---Prosecution had not brought any material on record to establish that alleged act of accused persons, demanding 'Chandah' (Bhatha) was so designed that it could fell within the scope of "terrorism"---Prosecution nowhere claimed that any threat was given to extort money, which might have created sense of insecurity amongst the masses on vast scale or a particular area---None of the witnesses had stated that they even knew that accused were armed, or the demand was by show of force or weapon---Show of weapon or even threat, lacked in the present case, which negated the basic ingredients of "terror"---Accused persons were not alleged to have offered any resistance or least attempted to use the allegedly recovered pistols at the time of their arrest---Accused persons were not found to have nexus with any organization, or any mafia, involved in collecting extortion of money (Bhatha)--- Material contradictions in the evidence of prosecution witness had revealed that witnesses were not steadfast with each other on material points regarding recovery, which had created serious doubt in prosecution case---Prosecution having failed to establish its case against accused persons, beyond the reasonable shadow of doubt, impugned judgment was set aside and accused were released, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Scope---Various circumstances were not required to extend the benefit of doubt to an accused---If a single circumstance was available, which according to a prudent mind was sufficient to create a reasonable doubt in the prosecution case; and thereby the veracity and the chastity of the prosecution case was rendered doubtful, then accused was entitled for the benefit of doubt as a matter of right and not a matter of grace.

Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 rel.

Ms. Asma Khan for Appellants (in Spl. Criminal Anti-Terrorism Appeal No. 16 of 2013).

Ali Haider Saleem, APG for the State (in Spl. Criminal Anti-Terrorism Appeal No. 16 of 2013).

Ms. Asma Khan for Appellants (in Spl. Criminal Anti-Terrorism Appeal No. 17 of 2013).

Ali Haider Saleem, APG for the State (in Spl. Criminal Anti-Terrorism Appeal No. 17 of 2013).

Ms. Asma Khan for Appellants (in Spl. Criminal Anti-Terrorism Appeal No. 18 of 2013).

Ali Haider Saleem, APG for the State (in Spl. Criminal Anti-Terrorism Appeal No. 18 of 2013).

Date of hearing: 28th November, 2013.

2015 P Cr. L J 185

[Sindh]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

ABDUL HADI SIDDIQUI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB)---Respondent

Constitutional Petition No.D-2632 of 2014, decided on 17th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9(b) & 26---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Bail, grant of---Tender of pardon, withdrawal of---Delay in filing of reference---Case of further inquiry---Petitioners were arrested by National Accountability Bureau for committing offence of corruption and corrupt practices by taking illegal gratification from students---National Accountability Bureau granted pardon to co-accused persons and their statements were recorded under S. 164, Cr.P.C. by Judicial Magistrate but after their statements, their pardon was cancelled---In letter of withdrawing pardon, it was written that pardon was granted on condition of making full disclosure relating to offence and both the persons failed to comply with the condition, therefore, pardon was withdrawn---Effect---National Accountability Bureau itself was not satisfied with confessional statements made in lieu of pardon---Co-accused persons in their statements did not specifically target petitioners but they implicated many other persons also some of them were already on bail---Incident was committed in year, 2001, inquiry was started in year, 2005 and inquiry report was submitted in year, 2010 while the reference was moved in year, 2014---No justification was placed by National Accountability Bureau for its inactive attitude for such a long delay which had made out case of petitioners of further inquiry---Petition was allowed in circumstances.

Abdul Kahliq v. State 1996 SCMR 1553; Abdullah Khan v. Abdul Qayoom and another 1996 SCMR 493; Sardar Amin Farooqui's case 2014 PCr.LJ 186 and Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 ref.

Syed Ansar Hussain for Petitioner.

Noor Muhammad Dayo, ADPG, NAB.

2015 P Cr. L J 205

[Sindh]

Before Syed Muhammad Farooq Shah, J

Agha IMTIAZ ALI KHAN---Applicant

Versus

MUHAMMAD ZIAUDDIN and 2 others---Respondents

Criminal Revision Application No. 125 of 2012, decided on 24th September, 2013.

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

----Ss. 265-K & 561-A---Illegal Dispossession Act (XI of 2005), Ss.3 & 4---Illegal dispossession---Dismissal of application for acquittal of accused---Validity---Applicant, from the very beginning had contended that he had nothing to do with the shop in question but he was running his business in a different shop---Inquiry report submitted by the Police revealed that original owner of shop in question was in possession of said shop and was running his business therein---Trial Court did not consider the grounds raised by the accused in his application filed under S.265-K, Cr.P.C.---Accused had also filed affidavit wherein he had reiterated that he had no concern with the shop in question---Trial Court did not record the reasons with regard to statement of the accused, wherein he had denied the ownership or the possession of shop in question---Trial Court was bound to ascertain correct factual position as per allegations made in the complaint---Three consecutive reports submitted by the Police had not been considered; and the contents of application under S.265-K, Cr.P.C., as well as the statement of accused, had also been ignored---Findings and observations of the Trial Court that since allegation had been made, accused/applicant, must undergo the purgation of a criminal trial, was a mockery of whole system, which had nullified the purpose, for which provision of S.265-K, Cr.P.C., were made---Section 265-K, Cr.P.C., allowed the court to exercise discretion to foster administration of criminal justice, but the Trial Court had failed to exercise such discretion---Reasons recorded by passing the impugned order were not plausible, exhaustive or judicious exercise---Impugned order was set aside and applicant was acquitted, in circumstances.

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

----S. 265-K---Power of the court to acquit accused---Provision of S.265-K, Cr.P.C., was self-explanatory, that accused could be acquitted at any stage of the case even without recording the evidence, when there was no probability of accused being convicted of any offence---Provision of S.265-K, Cr.P.C., were meant to prevent the rigour of prolonged trial, when it was apparent from the record that the trial would not conclude on conviction.

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

----S. 561-A---Inherent powers of High Court under S.561-A, Cr.P.C. were meant for dispensation of substantial justice.

Shakeel Ahmed for Applicant.

Muhammad Arif for Respondent No.1.

Shehzado Saleem, A.P.-G., Sindh.

Date of hearing: 19th September, 2013.

2015 P Cr. L J 235

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

ABDUL QADIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.84 of 2012, decided on 9th June, 2014.

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

----Ss. 9(c), 20 & 21---Criminal Procedure Code (V of 1898), S.103---Recovery of narcotic substance---Appreciation of evidence---Private witnesses, non-association of---Benefit of doubt---Chemical (diazepam) weighing 248 kilograms was allegedly recovered from vehicle being driven by accused, who was convicted and sentenced to imprisonment for life by Trial Court---Validity---Prosecution did not associate any private witness of the area from where alleged recovery of chemical substance and arrest of accused was made on the basis of previous spy information in day time (4-00 p.m.) at a very thickly populated area---No explanation in such regard was made in F.I.R., memorandum of arrest, challan (investigation report), or in evidence of prosecution witnesses, who were all police officials, hence violated express provisions of Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, read with S.103, Cr.P.C.---Prosecution did not examine person on whose spy information, accused was allegedly transporting chemical substance (diazepam) in 10 drums in huge quantity i.e. 248 kilograms in vehicle, nor produced vehicle or its key before Trial Court as case property---Owner of vehicle was neither cited as prosecution witness nor his evidence was recorded to support their case or to establish any connection of accused either with vehicle or with chemical substance (diazepam), which was allegedly recovered from the car---Prosecution failed to establish its case against accused without reasonable doubt, whereas judgment passed by Trial Court suffered from legal defects, hence not sustainable in law---High Court set aside judgment passed by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Iftikhar Ahmed v. The State 2006 YLR 2826; Rehmat Ali v. The State 2005 YLR 742; Mt. Tltli v. Alfred Robert Jones AIR 1934 Allahabad 273; Okeke Erec Ifeeanyl v. The State 2012 PCr.LJ 830; Abdul Sammad v. The State PLD 1986 FSC 265; Muhammad Kaleem v. The State 1995 MLD 1152; Muhammad Imran v. The State 2005 SCMR 1954; Fida Muhammad v. Uma Khita 2013 CLC 1171; The State v. Muhammad Yousuf PLD 1965 Lah. 324; Muhammad Nawaz and another v. The State PLD 1999 Lah. 18; Qaisrullah v. The State 2009 PCr.LJ 579; Gul Amin v. The State 2007 PCr.LJ 483; Attaullah alias Qasim v. The State PLD 2006 Kar. 206; Arshad Mehmood v. The State PLD 2008 SC 376; State v. Hemjoo 2003 SCMR 881; Tariq Pervez v. The State 1995 SCMR 1345 and Zafar v. The State 2008 SCMR 1254 ref.

Mamoor Shah v. The State 2006 YLR 401; Ghulam Muhammad v. The State 1995 MLD 1700; Taj Wali v. The State PLD 2005 Kar. 128; Imdad Ali Junejo v. The State 2002 PCr.LJ 1086; Hidayatullah v. The State 2012 PCr.LJ 1927; Naimatullah Khan v. The State 2012 YLR 251 and Gul Amin v. The State 2007 PCr.LJ 483 rel.

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

----Arts. 59 & 65---Opinion of expert---Circumstantial evidence---Scope---Such opinion is merely circumstantial corroborative evidence, which is not binding on Courts---In absence of any other independent corroborating evidence, conviction cannot be awarded merely in view of such opinion, particularly when there is reasonable doubt and benefit of which has to be extended in favour of accused.

Shaukat Hayat for Appellant.

Shafiq Ahmed, Special Prosecutor, ANF for the State.

Date of hearing: 9th June, 2014.

2015 P Cr. L J 300

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

Syed RIAZ HUSSAIN SHAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-1 of 2012, decided on 18th September, 2014.

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

----Ss.6, 9(c), 25 & 29---Criminal Procedure Code (V of 1898), S.103---Possessing and trafficking narcotics---Appreciation of evidence---Applicability of S.103, Cr.P.C.--- Scope--- Both the prosecution witnesses had deposed in detail about the day of the incident, and their evidence was consistent with each other---Both witnesses were subjected to lengthy and exhaustive cross-examination, but defence was unable to shatter their evidence, which otherwise was confidence inspiring---Said witness deposed that accused persons were available at their homes; and a huge quantity of narcotics was recovered---Prosecution had discharged its onus as per S.29 of the Act and had successfully established the recovery of the contraband, the source of information, and was consistent about the departure from Police Station and arrival at the spot---Evidence against accused persons did not suffer from any contradiction---Accused persons had been unable to disprove the allegations levelled against them---Application of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997---Technicalities of procedural nature, were to be ignored as special law would prevail over the general law---Prosecution witnesses having fully implicated accused persons, there was no reason for false involvement and Trial Court was left with no option, but to pass conviction to accused persons---In absence of any illegality, impropriety, misreading or non-reading of evidence, conviction and sentence awarded to accused persons, was just and proper and same were maintained.

Shafiullah v. The State 2007 YLR 3087; Zafar v. The State 2008 SCMR 1254; Muhammad Irshad v. The State 2007 SCMR 1378; Wajid Khan v. The State 2007 SCMR 1435 and Ismail v. The State 2010 SCMR 27 ref.

Abdul Baqi Jan Kakar for Appellants.

Ubedullah Malano, Special Prosecutor for ANF for the State.

Date of hearing: 11th September, 2014.

2015 P Cr. L J 316

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

MUHAMMAD DAWOOD and 8 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.D-72 and D-73 of 2013, decided on 25th September, 2014.

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

----Ss. 365-A, 395 & 149--- Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping for ransom, dacoity, common intention, act of terrorism---Appreciation of evidence---F.I.R. did not show any thing with regard to the claim of any ransom amount, nor about any aerial firing made by accused---In view of major contradictions and material irregularities in the case, prosecution had not been able to bring home the case for conviction of accused persons---Not necessary that a bundle of facts for acquitting a person, were required, rather a single evidence, which was material, was enough to put a dent in the case of the prosecution; and to entitle acquittal of accused---Contradictions, in the case, could neither be considered to be minor nor immaterial, rather were material contradictions, which had put a major dent in the case of the prosecution---Even a single circumstance, if found reasonable was enough to warrant acquittal of accused---Prosecution had not been able to prove its case against accused persons beyond any reasonable shadow of doubt, which could entail award of punishment to accused---Court below, was not justified by not properly appraising the evidence, depositions of the witnesses in a deeper manner---Impugned judgment of the court below, was set aside---Accused were acquitted from all the charges levelled against them and were released, in circumstances.

Muhammad Zubair and 2 others v. The State 2010 PCr.LJ 1892; Mst. Parveen Akhtar and others v. The State 2010 YLR 1899; Dr. Muhammad Abrar v. State 2010 YLR 1674; Amjad Ali v. The State 1994 PCr.LJ 87; Khalid and another v. The State 1989 PCr.LJ 742; Tariq Pervez v. The State 1995 SCMR 1345; Jan Alam v. The State and another 2004 PCr.LJ 68; Murad Shah and others v. The State 1991 MLD 887; Wazir Muhammad v. The State 1992 SCMR 1134; Abdul Khanan v. The State 2004 PCr.LJ 92; Muhammad Luqman v. The State 1989 MLD 1708; Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Muhammad Tayab and others v. The State 2014 SCMR 314; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Luqman v. The State 2011 PCr.LJ 361; Muhammad Mushtaq and others v. The State 2011 YLR 2338; Dr. Muhammad Abrar v. The State 2010 PCr.LJ 564; Qurban alias Darboo and 2 others v. The State PLD 1995 Kar. 315; Zahoor Ahmed v. The State 2007 SCMR 1519; Muhammad Tariq alias Tara v. The State 2009 SCMR 1260; Samiullah v. Jamil Ahmed 2008 SCMR 1623; Ashfaque Ahmed v. The State 2007 SCMR 641; Muhammad Iqbal v. The State 2001 MLD 1135; Muhammad Ilyas and others v. Khadim Hussain 2006 SCMR 1761; Dilbar Masih v. The State 2006 SCMR 1801; Mst. Razia alias Jia v. The State 2009 SCMR 1428; Akhter Ali and others v. The State 2008 SCMR 6 and Faheem Ahmed Farooqi v. The State 2008 SCMR 1572 ref.

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

----Ss. 365 & 365-A---"Kidnapping" and "kidnapping for ransom"---Scope---Case of kidnapping or kidnapping for ransom, were two different crimes---Since the legislature had provided different punishments, kidnapping for ransom was considered to be more heinous than kidnapping---Kidnapping for ransom, created fear, terror and insecurity in the society, same, therefore, had been made a part of Anti-Terrorism Act, 1997 vide S.7(e) of said Act.

Ghulam Murtaza v. The State 2010 PCr.LJ 261; Syed Muatasim Wasit alias Momi v. The State 2010 PCr.LJ 477 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

A.R. Farooq Pirzada, Nisar Ahmed Bhanbhro and Sahab Khan Kanasro for Appellants.

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

Dates of hearing: 7th August and 18th September, 2014.

2015 P Cr. L J 355

[Sindh]

Before Shahab Sarki, J

AZEEM SARWAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 292 of 2013, decided on 10th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497, third and fourth provisos [as inserted by Criminal Law (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), Ss.302, 324 & 392---Qatl-i-amd, attempt to commit qatl-i-amd and dacoity---Bail, refusal of---Hardened and desperate criminal---Statutory delay---Scope---Accused sought bail on the ground of statutory delay in conclusion of trial---Validity---All four accused remained busy in robbing valuables from the house of complainant for about two hours and when they left the house, inmates were released by people of area and police, then complainant found his son dead---Only thing which did not appeal to prudent mind was as to why and under what circumstances accused had killed son of complainant, in spite of the fact that deceased was tied by his hands and feet and was not in a position to retaliate before four culprits having deadly weapons---Absence of circumstances which compelled accused persons to kill son of complainant indicated that all four accused were hardened, desperate and dangerous persons---Bail under third proviso to S.497, Cr.P.C. could be refused to any accused by Court only on the ground that delay in conclusion of trial had occasioned on account of any act or omission of accused or any other person acting on his behalf---Bail under third proviso to S.497, Cr.P.C. could also be refused by Court if case of accused fell under fourth proviso to S. 497, Cr.P.C. and in such regard Court had to look into the acts of accused as third proviso to S.497, Cr.P.C. was controlled by fourth proviso to S. 497, Cr.P.C.---Case was covered by fourth proviso to S. 497, Cr.P.C., which disentitled accused to grant of bail even on the ground of delay---Bail was dismissed in circumstances.

Syed Naveed Ali v. The State 2012 YLR 2914; Naimat Khan v. The State 2013 PCr.LJ 1162 and Taj Muhammad v. The State 2011 PCr.LJ 1910 distinguished.

Sher Ali alias Sheri v. The State 1998 SCMR 190; Nazir Ahmed v. The State 2004 SCMR 1160; Iqbal Brohi v. The State 1998 PCr.LJ 2066; Abdul Kareem v. The State 2000 MLD 791; Ghazanfarullah Khan Pathan v. The State 2012 PCr.LJ 1613; Ameer Hamza v. The State 2007 YLR 2883; Javaid-ur-Rahman v. The State 2010 SCMR 1744; The State v. Aijaz alias Fauji Lashari 2013 PCr.LJ 1331; Sain Rakhio v. The State 2001 YLR 859; Essa Khan v. The State 2001 MLD 971; Saleh Muhammad v. The State 1983 SCMR 341; Liaquat Khan v. The State 2012 YLR 1107 and Akhtar Abbas v. The State PLD 1982 SC 424 ref.

Aamir Mansoob Qureshi for Applicant.

Muhammad Habib Jalib for the Complainant.

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

Date of hearing: 10th June, 2014.

2015 P Cr. L J 365

[Sindh]

Before Abdul Rasool Memon, J

MUNAWAR HUSSAIN alias BILLO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.16 and M.A. No. 444 of 2014, decided on 11th October, 2014.

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

----S. 392---Robbery---Appreciation of evidence---Benefit of doubt---Only the complainant had been examined as an eye-witness of the alleged incident, which allegedly took place in his house---No other inmate of the house had been examined to corroborate the version of the complainant---Evidence of the complainant, was contradictory with his own version given in the F.I.R.---Complainant, prima facie, had improved his testimony---Person, making contradictions and improvements, could not be held worthy of credence---Accused was arrested after more than six months of the alleged occurrence; and complainant was examined after more than one year of arrest of accused---Memory of a person would fade away with such passage of time---Accused was not put to any identification test---As to how the complainant was able to watch full faces of the culprits was not disclosed---According to the complainant they were muffled faces at the relevant time---Contents of memo. of recovery of digital camera, shown to have been made on pointation of accused, were not supported by Investigating Officer---Complainant, did not give particulars of said camera in the F.I.R., nor even in his statement before the court---Prosecution having failed to prove beyond reasonable doubt, the guilt of accused, conviction and sentence, passed by the Trial Court were set aside---Accused was acquitted and released, extending him the benefit of doubt, in circumstances.

1984 SCMR 42; PLD 1981 SC 472 and PLD 1977 SC 557 ref.

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

----Art. 22---Identification test---Object---Substantive evidence of a witness was his statement in the court, but the object of identification test, was to test that evidence---Testimony of the witness in court, as to the identity of accused, who was stranger to the witnesses, required corroboration which should be convincing evidence, or in the form of an earlier identification proceedings.

Farman Ali v. State 1997 SCMR 971 ref.

Asghar Ali Khan for Appellant.

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

Date of hearing: 19th August, 2014.

2015 P Cr. L J 391

[Sindh]

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

MUHAMMAD RASOOL---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 38, 39 of 2009 and Special Criminal Anti-Terrorism Jail Appeal No.2 of 2010, decided on 6th February, 2014.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for ransom, act of terrorism---Appreciation of evidence---Evidence of prosecution witnesses, was steadfast with each other in respect of all material aspects i.e., place of interception, arrival of three persons on motorcycle; taking possession by person, while third one followed the car, and place of dropping of alleged abductee---Evidence of said witnesses was natural and confidence inspiring, and they had corroborated each other in respect of all material aspects---Said witnesses remained under captive for a considerable period in separate rooms, their claim to have seen accused persons during such period was quite logical and reasonable one---Passing of ransom amount to accused persons, had been proved---Abductee had no enmity or annoyance against accused persons, nor accused persons had alleged or suggested any motive against witnesses---Trial Court had committed no illegality in believing the evidence of witnesses---Defence had not brought any material contradiction to cause any dent in the evidence of witnesses---In presence of direct, natural and confidence inspiring evidence of abductee, other corroboration was not needed nor any dent in other corroborative pieces of evidence, would help the defence---Impugned judgment of conviction being well reasoned, was maintained, in circumstances.

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

----S. 365-A--- Kidnapping or abducting for ransom--- Essential ingredients of offence--- Scope--- Essential ingredients to form the offence, were twofold: (i) act of abduction, (ii) for the purpose of extorting from the person kidnapped or abducted; or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted---Passing of ransom money was not necessary ingredient to constitute the offence under S.365-A, P.P.C., but only demand thereof was sufficient.

Muhammad Riaz v. Bilqiaz Khan 2012 SCMR 721 and Muhammad Amjad v. State PLD 2003 SC 704 rel.

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

----S. 365-A---Kidnapping or abducting for ransom---Evidence of abductee---Scope---Evidence of abductee regarding identification of abductors, was always safe to be believed, if same qualified the test of being natural and confidence inspiring---Conviction could well be awarded on such evidence, without seeking any further corroboration, particularly where factum of abduction was established, and abductees appeared to be having no enmity or consideration to falsely involve the innocent at the cost of real culprit of their abduction---Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution, not to be made the basis by the court to reject evidence in its entirety.

Abdul Adeel and others v. State 2009 SCMR 511 and Zulfiquar v. State 2007 SCMR 138 ref.

Umar Farooq Khan for Appellant (in Special Criminal Anti-Terrorism Appeal No. 38 of 2009).

Ms. Rahat Ehsan, D.P.-G. for the State (in Special Criminal Anti-Terrorism Appeal No. 38 of 2009).

Tanvir-ul-Islam for Appellant (in Special Criminal Anti-Terrorism Appeal No. 39 of 2009).

Ms. Rahat Ehsan, D.P.-G. for the State (in Special Criminal Anti-Terrorism Appeal No. 39 of 2009).

Abdul Razzak for Appellant (in Special Criminal Anti-Terrorism Appeal No. 2 of 2010).

Ms. Rahat Ehsan, D.P.-G. for the State (in Special Criminal Anti-Terrorism Jail Appeal No. 2 of 2010).

Date of hearing: 23rd December, 2013.

2015 P Cr. L J 438

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

JAVED IQBAL and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. D-136 of 2012, decided on 18th September, 2013.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302, 324 & 34---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Criminal Procedure Code (V of 1898), S.345, Sched. Third, item No.4(iii)---Act of terrorism, qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed arms---Appreciation of evidence---Transfer of case from Anti-Terrorism Court to Court of Session---Compromise, effect of---Application of accused filed under S.23 of Anti-Terrorism Act, 1997, for transfer of his case from the Anti-Terrorism Court to the Court of Session, was dismissed---Accused had committed murder of his real sister with fire-arm inside the court room, which under item No.4(iii), of the Third Schedule, annexed to Anti-Terrorism Act, 1997 was Scheduled Offence, exclusively triable by Anti-Terrorism Court---Contention was that complainant/husband of the deceased having entered into a compromise with the family of accused, by consent, matter could be transferred to the Court of Session; and parties be allowed to settle the matter in accordance with law---Validity---Accused was charged inter alia with an offence under Ss.6 & 7 of the Anti-Terrorism Act, 1997, which did not find place in any of the columns of the Table appended to the provisions of S.345, Cr.P.C., detailing the compoundable offences---Allowing prayer to transfer case from Anti-Terrorism Court on ground of compromise would literally mean converting a non-compoundable offence into a compoundable offence, which was a total novel concept; and not recognized by the law---Law had clearly limited the cases which could be compoundable/ compromised and did not provide any scope for converting a non-compoundable offence into a compoundable, merely because the parties had entered into a compromise---Such an action would not only frustrate the provisions of S.345, Cr.P.C., but would make all offences as compoundable which would be against the public policy and beyond the competence of court, and could not be allowed---Neither jurisdiction could be conferred on a court which had no jurisdiction to adjudicate an issue, nor a court could be deprived of its jurisdiction for the convenience or at the request of the parties---Accused had killed his sister on account of her free will marriage in the court room, where justice was dispensed and people had confidence to be treated in accordance with law---Anti-Terrorism Court, had rightly rejected request for transferring the case to the Court of Session, in circumstances.

Nazeer Ahmed v. Noorullah 2012 SCMR 517; Ziaullah v. Special Judge 2002 SCMR 1225; Gul Muhammad v. The State PLD 2012 Bal. 22; Muhammad Akram Khan v. The State PLD 2001 SC 96; Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; State v. Muhammad Shafiq PLD 2003 SC 224; Mst. Najam-un-Nisa v. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323; Shehzad Asif Raza v. Special Judge Anti-Terrorism Court and others 2012 PCr.LJ 1735; Peer Sabir Ali Shah v. Shah Muhammad Khan PLD 1995 SC 66; Moulvi Noor Muhammad v. The State 2000 PCr.LJ 1583; Muhammad Akhtar alias Hussain v. The State PLD 2007 SC 447; Mirpurkhas Sugar Mills v. Federation of Pakistan 2013 MLD 433; Noor Muhammad v. The State 1992 SCMR 2079; Ghulam Shabbir v. The State 2003 SCMR 663; Muhammad Rawab v. The State 2004 SCMR 1170; Shahzad alias Shado and 3 others v. Judge Anti-Terrorism Court, Faisalabad and 3 others 2005 SCMR 1162; M. Ashraf Bhatti and others v. M. Aasam Butt and others PLD 2006 SC 182; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 and Mst. Raheela Nasreen v. The State 2002 SCMR 908 ref.

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

----S. 345---Penal Code (XLV of 1860), S.311---Compounding of offence---Law had permitted compounding of specified offence, which were committed against individual by differentiating those offences which had reference to the interest of the State or against society as a whole by placing an embargo by way of subsection (7) of S.345, Cr.P.C., which laid down that no offence would be compoundable except as provided by S.345, Cr.P.C.---Even compounding of offence by the complainant or his legal heirs, did not mean that the offenders who were potential threats to the society, could not be punished---Perusal of S.345, Cr.P.C., in juxtaposition with S.311, P.P.C. would reflect that even in those cases where the offender was charged with compoundable offence, and a valid compromise had been placed before the court, despite the court by applying principle of 'Fasad-fil-Arz' could convict the offender under S.311, P.P.C., and punish him to death or imprisonment for life or imprisonment for a term which could extend up to fourteen years as Tazir---Where an offender was charged with various offences, some of which were compoundable and some were not, the court could only accept settlement in compoundable cases, and not in cases which did not find place in the Schedule annexed to S.345, Cr.P.C.

Hikmatullah and others v. The State 2007 SCMR 610 rel.

Abdul Sattar Kazi for Applicants.

M. Iqbal Kalhoro, A.P.-G. for the State.

Hidayatullah Abbasi, Imdad Ali Shah, Syed Khadim Hussain Shaikh and Aijaz Shaikh, Amicus Curiae.

Date of hearing: 18th September, 2013.

2015 P Cr. L J 459

[Sindh]

Before Naimatullah Phulpoto, J

MUNAWAR ALAM KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 174 and Criminal Jail Appeal No.275 of 2009, decided on 22nd September, 2014.

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

----Ss. 392, 397 & 34---Robbery, robbery or dacoity, with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Names of accused persons, did not transpire in the F.I.R.---No specific role had been assigned by eye-witnesses against accused---Holding of identification test would become necessary in a case, where names of culprits, were not given in the F.I.R.---Holding of such test was a check against false implication; and it was a good piece of evidence against genuine culprits---Accused was not put to identification parade---Holding of identification test could not be dispensed with in the case, simply because accused after committing the robbery had been subsequently found in possession of robbed cash---Prosecution had not brought cogent evidence on record to show that box lying in the house of accused in which he had kept cash, was in his exclusive possession---Case against accused appeared to be highly doubtful---Trial Court had recorded conviction against accused, on mere surmise, and not on any evidence---No confidence inspiring evidence was available to establish charge against accused---Conviction, was not to be based on the weakness of defence, but only on the strength of prosecution case---Prosecution having failed to prove its case against accused beyond any reasonable doubt, conviction and sentence recorded against accused, was set aside, he was acquitted of the charge, and he being on bail, his bail bond stood cancelled, and surety stood discharged, in circumstances.

The State v. Bashir and others PLD 1997 SC 408 ref.

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

----Arts. 37, 38, 39 & 40--- Confession in criminal case---Admissibility---Confession made by accused, while he was in Police custody, was not admissible---If, however, something related to the case was recovered or any fact was discovered in consequence of the information conveyed by accused, then the information so received, would be admissible in evidence within the purview of Art.40 of the Qanun-e-Shahadat, 1984, because presumption would be towards its truthfulness---If nothing in consequence of the disclosure was recovered or discovered, then the information so received by itself would not be admissible.

(c) Criminal trial---

----Benefit of doubt---Was not necessary that there should be many circumstances creating doubts to give benefit of doubt---If there was a circumstance, which created reasonable doubt in a prudent mind about the guilt of accused then accused would not be entitled to the benefit as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Shahabuddin Ghouri for Appellants (in Criminal Appeal No. 174 of 2009).

Nemo for Appellants (in Criminal Jail Appeal No.275 of 2009).

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

Date of hearing: 16th September, 2014.

2015 P Cr. L J 480

[Sindh]

Before Shahnawaz Tariq, J

MANSOOR ALI---Applicant

Versus

STATION HOUSE OFFICER and another---Respondents

Criminal Miscellaneous Application No. 159 of 2014, decided on 26th September, 2014.

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

----Ss. 22-A & 154---Application to the Justice of Peace for registration of second FIR---Scope---Applicant sought direction for lodging second FIR for the same incident---Proposed accused had already lodged FIR and challan had also been submitted---Applicant had repeated same facts and circumstances regarding the commission of the alleged offence, which had already been registered in First FIR by proposed accused---Applicant had failed to disclose new or different facts regarding commission of separate cognizable offence---Application seeking direction for registration of second FIR was dismissed by the Justice of Peace---Validity---Applicant had not approached the High Court with clean hands, but with nefarious task; as the counter version of the applicant, had already been investigated---Sole motive to lodge second FIR as counter version was to create a strong defence for accused persons in order to save their skins from the consequences of their trial, which they were facing before the Court---Lodging of second FIR, would not serve useful purpose, but would be a deliberate divergence, which would be fatal to meet the ends of justice---If accused were not satisfied with the conclusion of investigation, they could avail the alternate and efficacious remedy of filing direct complaint---If second FIR was based upon an independent incident and version, other than one which was the subject matter of the previously registered FIR, same could be registered---Second FIR could not be registered, if it was a counter-blast and counter-defence of the previously registered FIR---No direction could be issued by Justice of Peace for the lodging of second FIR, when first one had already been registered in respect of the incident for giving counter version of the other side---Impugned order passed by Justice of Peace, was maintained by High Court and did not call for any interference.

Saifur Rehman v. Xth J.M. Hyderabad and 3 others 2011 PCr.LJ 1629; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Anwar, Sub-Inspector Railway Police, Lahore v. SHO Railway Police Kasur and 2 others PLD 1999 Lah. 50; Muhammad Abdul Rauf Siddiqui v. SHO Police Station Gulberg and 2 others 2013 PCr.LJ 70 and Mst. Bhaitan v. State and 3 others PLD 2005 Kar. 621 distinguished.

Jamshed Ahmed v. Muhammad Akram and another 1975 SCMR 149; Kaura v. State and others 1983 SCMR 436; Mushtaq Ahmed v. SHO Police Station Munawan 1984 PCr.LJ 1454; Muhammad Azeem v. SHO Police Station Abbas Naggar 1988 PCr.LJ 41; Riaz Ahmed v. SHO Police Station Baseer Pur 1991 PCr.LJ 6; Habibullah v. Political Assistant and others 2005 SCMR 951; Abdul Latif v. Mst. Hakim Zadi and 2 others 2013 PCr.LJ 813; Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul-Haq Chohan 2009 YLR 2057(sic.); Imtiaz Ahmed Cheema, SHO v. SHO Police Station Dharki and 2 others 2010 YLR 189; Chief Commissioner Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45; Kazi Bahauddin Ahmed v. Province of East Pakistan and another PLD 1963 Dacca 1005 and Noor Ahmed v. Province of East Pakistan and others PLD 1964 Dacca 546 rel.

(b) Maxim---

----Audi alteram partem---Meaning---No person should be condemned without being provided an opportunity to defend himself which was based on the principles of natural justice.

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

----S. 561-A---Inherent jurisdiction of High Court under S. 561-A, Cr.P.C.---Jurisdiction of High Court, while dealing with case under S.561-A, Cr.P.C., High Court would save and preserve the jurisdiction to make such order; as could be necessary to give effect to an order under Criminal Procedure Code; or to prevent the abuse of the process of any court; or otherwise to secure the ends of justice---Issuance of notice to the proposed accused; and right of audience at the time of hearing of criminal miscellaneous application, was just, proper and legal, as same could neither be called nor termed as illegal and gross violation of the relevant provisions of law---High Court under S.561-A, Cr.P.C., was legally competent to issue notice to the proposed accused, and afford right of audience.

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

----S. 154---First Information Report---Scope---F.I.R., was the basic document to activate the Police machinery to open an account of investigation to threshold the truth, so the culprits be identified; and taken to the task by the process of law.

Farooq H. Naik and Barrister Shiraz Rajpar for Applicant.

Faisal Siddiqui and Salahuddin Panhwar for Proposed Accused.

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

Dates of hearing: 25th, 28th August, 1st and 3rd September, 2014.

2015 P Cr. L J 523

[Sindh]

Before Salahuddin Panhwar, J

AHMED alias MAKRO and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-22 of 2014, decided on 24th July, 2014.

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

----Ss. 7, 17(3) & 20---Penal Code (XLV of 1860), S. 394---Constitution of Pakistan, Art. 203-D--- Dacoity (Haraabah)--- Appeal---Maintainability---Federal Shariat Court---Jurisdiction---Accused was convicted by Trial Court under S. 394, P.P.C. for committing dacoity and was sentenced to five years of imprisonment---Validity---Trial Court was required under S. 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, to hold that Haraabah was not liable to punishment provided for in S. 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, or for which proof in either of the forms mentioned in S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was not available and only then punishment under relevant provision of P.P.C. would be passed---Under Art. 203-DD of the Constitution, it was the competence of Federal Shariat Court to examine correctness, legality or propriety of any finding, sentence or order recorded or passed by---Finding of Trial Court with reference to S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was to be examined by Federal Shariat Court and not by High Court as it was the object and purpose of Art. 203-D of the Constitution---Appeal was continuity of proceedings of trial and where trial was for an offence relating to enforcement of Hudood, then regardless of its decision under any law, appeal was to lie with Federal Shariat Court and not to the High Court---Appeal was returned in circumstances.

2009 PCr.LJ 747; 1999 PCr.LJ 1761; 2012 PCr.LJ 1491; Attaullah's case PLD 2002 SC 534; 1997 PCr.LJ 1900; 2000 PCr.LJ 1155; PLD 2003 Kar. 441; Haq Nawaz v. The State 2000 SCMR 785 and Muhammad Akbar v. The State 2003 YLR 1339 ref.

Ishrat Ali Lohar for Appellants.

Shahid A. Shaikh, APG for the State.

Wali Muhammad Khoso for the Complainant.

Date of hearing: 18th July, 2014.

2015 P Cr. L J 535

[Sindh]

Before Syed Muhammad Farooq Shah, J

M. IQBAL---Applicant

Versus

The STATE---Respondent

Bail Application No. 1177 of 2014, decided on 8th September, 2014.

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

----S. 344---Frequent adjournment---Effect---Frequent adjournments mostly sought on flimsy grounds contribute to hardship, inconvenience and expenses to parties and witnesses---Witnesses come to assist Court to dispense justice, who sacrifice their time feel inconvenience rather frustration and unhappiness if their cases adjourn, as they are required to come to Courts repeatedly, which amount to provide opportunities to opposite parties to threaten them not to depose truth---Unnecessary adjournments creating hurdles in judicial system may shake confidence of concerned witnesses, which should be avoided at all costs.

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

----S. 497(1), third proviso (a)---Penal Code (XLV of 1860), S.324---Attempt to commit Qatl-i-amd---Bail, grant of---Statutory delay---Contention of accused was that he had been in custody for past more than 25 months but trial was not concluded---Effect---Sufficient material was available on record to show that finalization of trial could not be taken place mainly on account of delay caused by accused as adjournments were sought in presence of prosecution witnesses---Delay in trial was mainly assigned on the part of accused, which was clear from diary sheets of Trial Court---Bail was dismissed in circumstances.

Khawaja Naveed Ahmed along with Kamran Mirza for Applicant.

Nemo for the State.

Jamil Ahmed for the Complainant.

Date of hearing: 3rd September, 2014.

2015 P Cr. L J 551

[Sindh]

Before Abdul Rasool Memon, J

MIR HAZAR---Appellant

versus

NAWAB KHAN and 4 others---Respondents

Criminal Acquittal Appeal No.30 and M.As. Nos. 1842, 1747 of 2013, decided on 23rd August, 2013.

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

----Ss. 410 & 417(2)---"Appeal against conviction" and "appeal against acquittal"--- Scope and principles--- Principles for appeal against conviction and acquittal, were altogether different---Accused, in an appeal against acquittal, earned double presumption of innocence; one before trial and the other after acquittal and for reversal of acquittal of accused, appellant had to bring on record that the evidence which had been brought on record had not been properly considered; and the order of the Trial Court was fanciful, perverse and not in accordance with the law.

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

----Ss. 420, 409, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Cheating and dishonestly inducing delivery of property, criminal breach of trust by public servant, forgery, using as genuine a forged document, corruption---Appeal against acquittal---Appreciation of evidence---Neither complainant nor any of his witnesses had seen the official accused in accepting or demanding the bribe to give undue favour to the accused---Simple presumption of the complainant was that Mukhtiarkar and Tepedar (respondents) had changed Khata of disputed survey number after accepting bribe---Order of Commissioner, main base of complaint, was sub-judice before Member Board of Revenue---Appeal against the order of Commissioner being pending before the Board of Revenue, which was the competent forum of Revenue Authorities to evaluate and examine the genuineness, authenticity and correctness of said entry; criminal court was not competent to determine the rights of parties and orders on the basis whereof it was recorded---No illegality or irregularity in the impugned judgment had been pointed out by the counsel for appellant---Impugned judgment having been passed by Special Judge, Anti-Corruption in accordance with law and available evidence, that did not require any interference---Appeal, stood dismissed.

Faiz Muhammad Larik for Appellant.

Date of hearing: 23rd August, 2013.

2015 P Cr. L J 611

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

MUHAMMAD SHARIF---Applicant

versus

SAGEER AHMED alias BHAYA and another---Respondents

Criminal Revision Application No.34 of 2012, decided on 8th March, 2013.

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

----S. 6---Anti-Terrorism Court, jurisdiction of---Scope---Jurisdiction of Anti-Terrorism Court has to be determined according to mandate of relevant penal provisions provided in S. 6 of Anti-Terrorism Act, 1997, at the time of framing of charge.

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

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(a)(e)---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qat-i-amd, kidnapping for ransom--- "Act of terrorism"--- Determination---Grievance of complainant was that Anti-Terrorism Court transferred the trial to court of plenary jurisdiction on the ground that offences did not contain element of terrorism---Validity---Complainant, during trial, had categorically deposed that his son was kidnapped and ransom was demanded from him and his son was murdered---After recording evidence, mere tentative assessment of Anti-Terrorism Court that it had no jurisdiction was injudicious and contrary to law---No enmity existed between the parties, action of accused resulted in striking terror and sense of insecurity among the people in a particular vicinity and it amounted to create terror in business community---Anti-Terrorism Court had exclusive jurisdiction in the matter as action of accused fell within the ambit of section 6 of Anti-Terrorism Act, 1997---High Court declared the order passed by Anti-Terrorism Court to be illegal and injudicious and was set aside---High Court directed Anti-Terrorism Court to proceed in case under the provisions of Anti-Terrorism Act, 1997, and decide the case in accordance with law---Revision was allowed in circumstances.

Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317; Muhammad Yaqoob and others v. The State and others 2009 SCMR 527; Mohabbat Ali and another v. The State 2007 SCMR 142; Tariq Mahmood v. The State 2008 SCMR 1631; Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 and Muhammad Irkam and another v. Judge, Special Court-I and 2 others 2005 PCr.LJ 957 ref.

Najam-un-Nisa v. Anti-Terrorism Court 2003 SCMR 1323 and Bashirullah v. The State C.P.L.A. No.238 of 2000 rel.

Chaudhry Abdul Rasheed for Applicant.

Amir Mansoob Qureshi for Respondent No.1.

Ali Haider Saleem, Assistant Prosecutor-General Sindh for Respondent No.2.

Date of hearing: 26th February, 2013.

2015 P Cr. L J 628

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

SHAHID ZAFAR and others---Appellants

versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.6, 7, 8, 9 of 2011 and Confirmation Case No.4 of 2011, decided on 21st January, 2014.

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

----Ss. 6, 7 & 8---"Terrorist act", determination of---Jurisdiction of Special Court---For determination as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., piece of evidence and surrounding circumstances; it was also essential to examine, whether alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7 & 8 of Anti-Terrorism Act, 1997---Whether act of accused was an "act of terrorism" or not, the motivation, object, design and purpose behind the said act, was to be examined; it was also to be seen as to whether said act had created a sense of fear and insecurity in the public, or in a section of public, or community or in any sect---Where action would result in striking terror on creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area, it would amount to "terror"; and such an action squarely fell within the ambit of S.6 of Anti-Terrorism Act, 1997, and would be triable by a Special Court constituted for such purpose---Courts had only to see whether the "terrorist act" was such which would have the tendency to create sense of fear and insecurity in the minds of the people or any section of the society.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Manner in which murder of a young boy was committed, by a personnel of Rangers Force, in a public park, was an act of "terrorism"---Act of accused (Rangers personnel) who exploited Rangers Uniform, was to create a sense of insecurity; and destabilized the public at large, who watched the scene of offence on television; and who were also present in the public park---Neither motive, nor intent for commission of offence was relevant factor for the purpose of conferring jurisdiction to Anti-Terrorism Court---Cogent evidence had proved that the act was designed to create sense of insecurity in the society and was classical high handedness of law enforcing Agency, who were bound to provide protection to the citizens---Rangers had no authority at all to open fire upon accused persons, unless accused persons fired upon them; it was not necessary that action of accused, must have taken place within the view of general public so as to bring it within the encompass of Anti-Terrorism Act, 1997, but in the present case, action created fear, insecurity and psychological impact upon the minds of people---Trial Court had rightly assumed the jurisdiction and decided case under the provisions of Anti-Terrorism Act, 1997---Evidence of prosecution witnesses was fully corroborated by medical evidence and positive report of Chemical Examiner---Defence evidence could not be believed for the reasons that lady from whom mobile and purse were allegedly snatched by deceased, had not been examined by accused persons in defence---Other defence witnesses, who had not given probable cause of his presence at the time of incident, had suppressed relevant facts---Evidence of prosecution witnesses, was quite natural, straightforward, confidence inspiring, and corroborated by medical evidence and same had rightly been relied upon by the Trial Court for conviction against accused persons---Deceased was empty handed, and accused persons were armed with official weapons---No probability that deceased would cause any harm to accused persons, or snatch weapons from them and escape---Deceased, in a very brutal manner was fired at by accused, not once, but another fire was also made upon him---Conduct of participants/co-accused, showed that the intention of accused persons was to kill the deceased---Accused persons had failed to substantiate defence plea---Death sentence had rightly been awarded to accused who caused fire-arm injuries to deceased---Remaining accused persons, except one, were also rightly sentenced to imprisonment for life on the basis of evidence connecting them in commission of offence.

Niranjan Singh Karam Singh Punjabi Advocate v. Jitendra Bhimraj Bijja and others AIR 1990 SC 1962; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Muhammad Afzal and others v. SHO and others 1999 PCr.LJ 929; Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199; Amir Khan v. The State PLD 2005 Kar. 344; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Tariq Hakim v. The State and 2 others 2011 YLR 19; Sripathi and others v. State of Karnataka AIR 2010 SC 249; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370; Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517 and Niaz Ahmed v. The State 2013 PCr.LJ 429 ref.

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

----S. 34---Common intention---Where two or more persons acted with common intention, each was liable for the act committed, as if it had been committed by him alone.

Sh. Muhammad Abid v. The State 2011 SCMR 1148 and State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

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

----Art. 164---Evidence of DVD cassette/video recording---Admissibility in evidence---Evidence in DVD cassette/video recording, produced in Trial Court, was admissible in evidence.

Shaikh Aijazur Rehman v. The State PLD 2006 Kar. 629 and Ramchandran and others v. State of Kerala 2012 SCMR 1156 rel.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---One of accused persons who were Rangers Force personnel, was standing on Rangers Van duly armed with official weapon, but neither he raised Lalkara, nor committed any overt act---No evidence was on record to show that said accused shared common intention with main accused---Prosecution had failed to prove the case against said accused beyond any shadow of doubt---Said accused was acquitted, extending him benefit of doubt and he was released, in circumstances.

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

----S. 345---Penal Code (XLV of 1860), Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, common intention, act of terrorism--- Compromise application--- Maintainability--- Compromise applications were filed by complainant/legal heirs of deceased during pendency of appeals---Offence under S.302, P.P.C. was compoundable by legal heirs of the victim, whereas offence under S.7 of Anti-Terrorism Act, 1997, had not been shown in the first and second column of table of S.345, Cr.P.C.---Such offence was not compoundable under the provisions of S. 345, Cr.P.C., as provisions of said section, could not be stretched too far by including therein a non-compoundable offence under the garb of humanitarian grounds; or on the ground that accused persons belonged to Rangers Force---Manner, in which brutal murder of the deceased was committed, caused sensation in society---Such offence being against society, it could not be permitted to be compounded by an individual/legal heir of the deceased on any score---Application filed for compounding of offence being without legal force, was dismissed, in circumstances.

Muhammad Rawab v. The State 2004 SCMR 1170 rel.

Shaukat Hayat for Appellant (in Appeal No.6 of 2011).

Ch. Amir Nawaz Waraich for Appellant (in Appeal No.7 of 2011).

Habib Ahmed for Appellants (in Appeal No.8 of 2011).

Mehmood Alam Rizvi for Appellants (in Spl. Criminal Anti-Terrorism Appeal No.9 of 2011).

Khadim Hussain Khuharo, DPG for the State.

Amir Mansoob Qureshi for the Complainant.

Dates of hearing: 28th March, 24th, 30th April, 15th, 16th, 22nd, 28th, 29th and 30th May, 2013.

2015 P Cr. L J 690

[Sindh]

Before Aftab Ahmed Gorar, J

MANZOOR CHACHAR and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.S-92 of 2012, decided on 14th February, 2014.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Sentence, reduction in---Evidence of the victim, was of much importance, in which she had fully implicated main accused in the commission of rape---Co-accused who had facilitated for commission of offence was directed to be released forthwith---Considering affidavit sworn by complainant, coupled with the no objection, extended by prosecution, sentence of R.I. for life awarded to main accused, was reduced upto R.I. for 10 years' with fine of Rs.20,000---Benefit of S.382-B, Cr.P.C. was also extended to accused by the Trial Court.

Syed Shamim Hassan for Appellant.

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

Nisar Ahmed A. Soomro for the Complainant.

Date of hearing: 14th February, 2014.

2015 P Cr. L J 722

[Sindh]

Before Naimatullah Phulpoto, J

SALEEM KHADRA---Appellant

versus

The STATE---Respondent

Criminal Appeals Nos.309, 336 and Murder Reference No.8304 of 2013, decided on 15th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Suspension of sentence---Appreciation of evidence---Scope---Accused sought suspension of sentence as he was convicted by Trial Court and sentenced to imprisonment for life---Validity---Appraisal of evidence in depth was neither warranted nor desirable while dilating upon and deciding application for suspension of sentence---Court should confine itself to judgment assailed before it and thorough scrutiny of evidence and its evaluation should be made while adjudicating upon appeal as it would be opportune moment for doing so and not while deciding application moved under S. 426, Cr.P.C., as it was premature stage---Conviction could not be set aside while exercising jurisdiction as conferred under S. 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which required a thorough probe and deeper scrutiny of evidence which should be avoided---Where on perusal of facts in judgment passed by Trial Court, the appellate Court had come to the conclusion that judgment suffered from any legal error, it would be justified to suspend the sentence and grant bail---Accused could not point out any legal error in judgment passed by Trial Court and at such stage finding recorded by Trial Court was to be given due weight---High Court declined to suspend judgment passed by Trial Court---Application was dismissed in circumstances.

Mazhar Ahmed v. The State and another 2012 SCMR 997 and Shakeel Ahmed and another v. The State Criminal Petition No. 40-K of 2014 distinguished.

Muhammad Ashraf Kazi for Appellant.

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

2015 P Cr. L J 729

[Sindh]

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

SAJID DADABHOY---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Director-General and another---Respondents

C. P. No. D-2371 of 2012, decided on 7th April, 2014.

National Accountability Ordinance (XVIII of 1999)---

----S. 5(r)--- Constitution of Pakistan, Art. 199--- Constitutional petition---"Wilful default", criminal proceedings by NAB---Banker and customer---Petitioner had sought relief that the inquiry pending against him before the NAB be declared illegal, mala fide and an abuse of process---Initiation of criminal proceedings for "wilful default" by the NAB being dependant upon the result of civil litigation, criminal court, during pendency of civil suit for recovery of defaulted amount, to keep its hands away until the civil litigation was disposed of; as the dispute between the Banker and customer, was to be decided by the Banking Court, under the Financial Institutions (Recovery of Finances) Ordinance, 2001, which was promulgated after the promulgation of National Accountability Ordinance, 1999---Competent Banking Court had the domain to determine the rights and liabilities of the parties to suit--- Proceedings under National Accountability Ordinance, 1999, ought to be stayed until it was found that the petitioner was liable to pay any amount to the bank through decree of the court.

Constitutional Petition No.1941 of 2011; Abdul Shakoor Kaloodi and another v. The State 2003 PCr.LJ 626; Mian Muneer Ahmed v. The State 2004 PCr.LJ 2012; Asim Textile Mills Limited and another v. National Accountability Bureau and others PLD 2004 Kar. 638; Air Marshal (Retd.) Waqar Azim and 3 others v. The State 2002 YLR 1811; ADBP and another v. Abid Akhtar and others 2003 SCMR 1547; Sunrise Textile Mills v. Crescent Commercial Bank Limited 2007 SCMR 1569; 2005 PLD SC 323; PLD 1999 Kar. 468 and PLD 2004 Kar. 407 ref.

Murtaza Wahab for Petitioner.

Noor Muhammad Dayo, DPG NAB for Respondent No.1.

Taimoor Mirza for Respondent No.2.

Dates of hearing: 24th March and 2nd April, 2014.

2015 P Cr. L J 747

[Sindh]

Before Shahnawaz Tariq, J

SHAN---Applicant

versus

The STATE---Respondent

Criminal Bail Application No. 1309 of 2014, decided on 22nd August, 2014.

(a) Natural justice, principles of---

----Scope---Principles of natural justice and rule of law have to be observed at every stage and step---Law cannot be used as shield to deviate from following such principles.

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

----S. 103---Recovery proceedings---Witnesses from locality---Object, scope and purpose---Provisions of S. 103, Cr.P.C. are mandatory in nature and cannot be ignored without any proper justification---Prime object of S. 103, Cr.P.C. is to ensure transparency and fairness on the part of police during the course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused.

(c) Sindh Arms Act (V of 2013)---

----S. 34---Criminal Procedure Code (V of 1898), S. 103---Arrest and search---Procedure---Provision of S. 34 of Sindh Arms Act, 2013, has not expressly excluded provisions of S. 103, Cr.P.C. and it has provided legal cover that police officials also can act as witnesses of recovery besides private persons.

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

----Ss. 497(2) & 103---Sindh Arms Act (V of 2013), S. 23---Recovery of arms---Bail, grant of---Private witness, non-associating of---Case of further inquiry---Accused was arrested for possessing .30 bore unlicenced pistol with three live bullets---Plea raised by accused was that alleged recovery was made from public place and no private person was made witness---Validity---No valid reason or plausible explanation was furnished by prosecution for non-association of independent witnesses by police when independent people were available at the place of recovery which was a bus stop on main road situated in thickly populated industrial area---Case of accused required further inquiry as envisaged under S. 497(2), Cr.P.C.---Bail was allowed in circumstances.

State v. Bashir and others PLD 1997 SC 408 and Jamal ud Din v. State 2012 SCMR 573 ref.

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

----Ss. 497 & 498---Bail---Principle---While considering question of bail, Court may consider aspect of minimum quantum of sentence provided for alleged offence.

Gulzar Hussain Bukhari for Applicant.

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

Date of hearing: 22nd August, 2014.

2015 P Cr. L J 758

[Sindh]

Before Salahuddin Panhwar, J

NASEER SHAH and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.S-45 and S-47 of 2013, decided on 15th August, 2014.

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

----Ss. 426, 321, 223 & 537---Penal Code (XLV of 1860), S. 324---Application under S. 426, Cr.P.C. for suspension of sentence---Irregularities in the framing of charge---Effect---While deciding an application under S. 426, Cr.P.C.---Court was justified to make a comment regarding defect and irregularity in the charge, for the reason that same could result in causing prejudice to case of either sides at the time of final disposal of the appeal---Defect in the charge, was curable under Ss.223 & 537, Cr.P.C.---Mere irregularity in the charge, should not result in declaration of a legal trial as nullity, particularly where it caused no serious prejudice to accused.

2010 SCMR 608; PLD 2007 SC 564; 2009 YLR 2205; 2012 SCMR 997; 2007 PCr.LJ 829; 2010 MLD 1068; PLD 2006 SC 802; 2009 YLR 1486; 2013 SCMR 1403; 2007 SCMR 184; 2008 SCMR 558 and PLD 2006 SC 153 ref.

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

----Ss. 426(1) & 497---Suspension of sentence---Bail, grant of---Provision of S. 426(1), Cr.P.C., was analogous to the one contained in S.497, Cr.P.C., as in both the cases, the sentence was to be suspended pending hearing of appeal/trial, and convict was to be released on bail---Existence and non-existence of the reasonable grounds for believing that the person was guilty of the offence and the scope of further inquiry, were amongst the criteria/hallmarks---In case of application under S. 426, Cr.P.C., only the tentative assessment of the material available evidence---What was undisputedly common for exercising jurisdiction under Ss.426 & 497, Cr.P.C., was that deeper appreciation of evidence was not permissible.

2012 SCMR 997 ref.

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

----Ss. 34 & 149---"Common intention"---"Common object"---Sections 34 & 149, P.P.C., were exception to the general principle of law of conviction, which insisted that no one else would be responsible for the act, or consequences, except the one who did the act---While passing conviction with reference to S.34 or 149, P.P.C., much care and caution be shown by the court, and before reaching to conclusion, the question of "common intention" or "common object", also be appraised---Trial Court, in the present case, had passed conviction for all convicts by invoking S.34, P.P.C., without determining the issue of common object---Such aspect of the impugned judgment of conviction required serious consideration, which the High Court left open to be decided at time of final disposal of appeal, as same would require deeper appreciation.

2010 SCMR 1178 and Muhammad Altaf v. State 2002 SCMR 189 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss.336 & 337-F(iii)---Causing Shajjah, Mutalahimah---Application for suspension of sentence---Accused was specifically nominated in the F.I.R. with active role of causing fire shot injury to the injured on right leg, which per medical evidence, resulted into injuries within the meaning of Ss.337-F(iii) & 336, P.P.C.---Accused, prima facie, was convicted under S.336, P.P.C., and sentenced to imprisonment for ten years with payment of Arsh---Conviction of ten years' R.I. could not be taken as short one, since accused had not been able to prima facie show anything on record, which could be termed as a patent illegality or irregularity, to that extent, accused had failed to bring his case within exception, where his sentence be suspended pending determination of legality of judgment of conviction---Application for suspension of sentence, was declined, in circumstances.

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

----S. 426---Penal Code (XLV of 1860), Ss.324 & 337-F(iii), (vi)---Attempt to commit qatl-i-amd, causing Mutalahima, Munaqqilah---Application for suspension of sentence---Accused was attributed an injury on left foot of the injured, which, per medical evidence, was declared under S.337-F(iii)(vi), P.P.C. and conviction for the same was passed as six years' R.I., and two years' R.I. with payment of Daman---Conviction for six years, be taken as short one particularly when accused had been in continuous confinement---Suspension of sentence of accused pending determination of legality of the conviction, would be in the interest of justice---Application of accused for suspension of sentence, was accepted.

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

----S. 426---Penal Code (XLV of 1860), Ss.324, 337-A(1), 337-F(i) & 337-L(2)---Causing Shajjah-i-Khafifah---Attempt to commit qatl-i-amd, causing damihah, and hurt---Application for suspension of sentence---Short conviction---Effect---Accused was attributed injury with his pistol at the back of the injured, which did not find support from medical evidence, and even otherwise, injuries on person of injured were declared to be falling within meaning of Ss.337-A(i), 337-F(i) & 337-L(2), P.P.C.---Conviction passed for such offence, fell within meaning of the "short conviction"---If legality of conviction passed in other offence including the one under S. 334, P.P.C. had been left open for final determination, suspension of sentence, in circumstances, was in the interest of justice.

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

----S. 324---Attempt to commit qatl-i-amd---Punishment for act under S. 324, P.P.C. would not debar the court from convicting for hurt, caused by accused, during course of such act.

Nisar Ahmed Durrani for Appellants (in Criminal Appeal No.S-45 of 2013).

Shahid Shaikh, A.P.-G. for the State (in Criminal Appeal No.S-45 of 2013).

Syed Madad Ali Shah for the Complainant (in Criminal Appeal No.S-45 of 2013).

Nisar Ahmed Durrani for Appellant No.1 (in Criminal Appeal No.S-47 of 2013).

Masood A. Noorani for Appellant No.2 (in Criminal Appeal No.S-47 of 2013).

Shahid Shaikh, A.P.-G. for the State (in Criminal Appeal No.S-47 of 2013).

Madad Ali Shah for the Complainant (in Criminal Appeal No.S-47 of 2013).

Date of hearing: 22nd July, 2014.

2015 P Cr. L J 773

[Sindh]

Before Aftab Ahmed Gorar, J

KHURRAM SHAHZAD---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 323 of 2012, decided on 26th May, 2014.

Penal Code (XLV of 1860)---

----S. 376(1) [as amended by Protection of Women Act (VI of 2006)]---Rape---Appreciation of evidence---Victim who was star witness in the case, in her deposition had fully implicated accused and in her evidence, had reiterated the contents of F.I.R.---Lady Doctor, who examined the victim had opined that victim was subjected to fresh act of sexual intercourse---Final certificate issued by lady doctor was based on the report of Chemical Examiner---Medical Board also confirmed the opinion given by lady doctor---Victim having fully implicated accused in her deposition, contradiction regarding the colour of the clothes of the alleged victim, could not be given due weight so as to set aside the conviction of accused---Defence could not succeed in establishing that evidence of the victim girl was not confidence inspiring, or was not reliable; her statement could be made the basis for conviction of accused---Prosecution having succeeded in proving its case beyond reasonable doubt against accused, judgment of the Trial Court was upheld, in circumstances.

2012 PCr.LJ 1903; 2012 PCr.LJ 437; 2013 YLR 866; 2011 PCr.LJ 1443 and 2011 PCr.LJ 1964 ref.

Muhammad Faisal Sial for Appellant.

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

Muhammad Mansoor Mir and Ms. Asia Muneer for the Complainant.

Date of hearing: 16th May, 2014.

2015 P Cr. L J 790

[Sindh]

Before Syed Saeed Uddin Nasir, J

Mst. HASEENA---Petitioner

versus

SHO POLICE STATION KOTDIJI and another---Respondents

Constitutional Petition No. S-3438 of 2014, decided on 5th January, 2015.

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

----Ss. 22-A, 22-B & 154--- Constitution of Pakistan, Art.199---Constitutional petition---Application for direction for registration of criminal case to Justice of Peace---Powers and duties of the Justice of Peace---Petitioner, mother of deceased had impugned the validity of order, whereby her application filed under S.22-A, Cr.P.C. was declined by the Justice of Peace, and her prayer for issuance of direction to the concerned SHO for registration of FIR against nominated accused, was dismissed---Justice of Peace, while dismissing application of the petitioner, mainly relied upon the statement made by the Police with regard to the notorious criminal record of petitioner's son, and had not passed the speaking order---Course adopted by Justice of Peace was patently against the norms and settled principles of law---Provisions as contemplated by S.22-A(6), Cr.P.C., had not been complied with by Justice of Peace, while passing the impugned order---Justice of Peace was bound to give directions to the concerned SHO, where such an Officer, despite applicant's request or approach, had refused to lodge FIR in respect of cognizable offence, which had been alleged before him by the applicant/complainant---Concerned SHO, would be failing in his duty, if an FIR was not registered by him, if a cognizable offence was made out---Applicant, in the application under S.22-A, Cr.P.C. before Justice of Peace, had raised a specific allegation against the proposed accused persons that they had committed murder of the son of applicant; Justice of Peace instead of dealing with main and basic question in the impugned order, dismissed application filed under S.22-A, Cr.P.C., without assigning any reason for doing so---Justice of Peace was not justified in law by acting upon the report submitted by SHO, and dismissed the application of the petitioner on the basis of said report, instead of on the basis of incident narrated and allegations made by the petitioner in her application---Justice of Peace, was duty bound to determine the existence of cognizable offence without going into the question of credibility of information in question without calling for any comments/report from the SHO--- Impugned order suffered from infirmity and was not a speaking order as no valid reason had been mentioned therein in order to show that the prayer made by applicant, was declined after proper application of mind and legal principles and appreciation of material available on record---Impugned order was set aside, and concerned SHO was directed to record the statement of the petitioner; and if such statement reflected that ingredients of cognizable offence were available he would register an FIR against them.

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

----S. 154---Lodging of FIR---Discretion of Police Officer concerned---Scope---Section 154, Cr.P.C., left no discretion with the Police Officer incharge of the Police Station to avoid lodging of FIR, if by nature of facts stated before him, it transpired that a cognizable offence had been committed---Every informant had a legal right to get FIR registered in the case of cognizable offence, if it had been committed.

Nisar Ahmed Bhambhro for Petitioner.

Shaharyar Awan, Assistant A.-G. along with SHO Police Station, Kotdiji for Respondents.

2015 P Cr. L J 813

[Sindh]

Before Muhammad Shafi Siddiqui, J

HUSSAIN BUX and 2 others---Applicants

versus

MUHAMMAD KHAN and 2 others---Respondents

Criminal Miscellaneous Application No. S-264 and M. A. No. 2394 of 2011, decided on 29th January, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 550, 523, 51 & 561-A---Impounding/seizure of buffaloes---Application for quashing of order---Applicants, who claimed to be owners of buffaloes in dispute, had challenged orders, passed by Judicial Magistrate and Revisional Court, respectively, whereby an application of respondents for return of buffaloes, was allowed---Disputed buffaloes were taken from the grass field/grazing area of the applicants---Applicants, at the relevant time lawfully or unlawfully, were in custody, in control, or in possession of those buffaloes---Contention of respondents that applicants had stolen the buffaloes, or at least had purchased those from a thief, was far-stretched---Question was yet to be determined, as to whether the applicants had stolen the buffaloes, or purchased from a thief---Without making any comments regarding the ownership of those buffaloes, prima facie it appeared that impugned orders were based on the enquiry report of DSP, who himself based his report on certain evidence taken from the individual---Significant point that smacked mala fide, was that respondent, claimed that buffaloes were stolen ones and a half year before the date of their seizure; and during that period of one and half years, respondents did not bother to lodge single complaint before concerned authority regarding their buffaloes having been stolen---Report in that respect was lodged after one week of the date of incident of seizure and in the said FIR or even subsequently, the marks, caste, breed, race or linage of stolen buffaloes, were not shown or mentioned---Such questions, were crucial and would go to the root of the case; and required observation from the Trial Court, as well as from the revisional court before handing over buffaloes to the respondents---Nothing was in S.523, Cr.P.C., to authorize a Magistrate to decide as to which party was the rightful owner of the buffaloes---Enquiry should only be limited to the findings as to which party was entitled to the possession of the buffaloes---Impugned orders passed by the Judicial Magistrate or revisional court, were set aside, with direction to Judicial Magistrate to conduct inquiry based on expert opinion, and also probe facts, as to how and in what manner respondents came to know about such seizure; and when, such application was moved by respondents for release of buffaloes.

Qaisar Shafeeq Vohra v. The State 1991 MLD 2590; Zulfiqar Ali v. The State 2011 PCr.LJ 1729 and Messrs Purshottam Das v. State AIR 1952 Allahabad 470 ref.

Habibullah G. Ghouri for Applicants.

Altaf Hussain Surahio for Respondent No.1.

Naimatullah Bhurgri, State counsel.

2015 P Cr. L J 846

[Sindh]

Before Muhammad Iqbal Kalhoro, J

NAZIR AHMED---Applicant

versus

STATION HOUSE OFFICER, POLICE STATION ADIL PUR, DISTRICT GHOTKI and another---Respondents

Criminal Miscellaneous Application No.S-617 of 2011, decided on 25th September, 2014.

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

----Ss. 22-A, 22-B, 154, 200 & 561-A---Application to Justice of Peace under Ss. 22-A & 22-B, Cr.P.C. for registration of criminal case---Dismissal of application---Applicant sought quashment of dismissal order of his application---Applicant, had called into question impugned order passed by Justice of Peace, whereby his application for registration of FIR against proposed accused was dismissed---Close relatives of the applicant were involved in various criminal cases against whom FIRs were registered; and in pursuance whereof they were arrested, and sent up for the trial---Persistence of the applicant to get his FIR registered since 2011 against the Police Officials, without having recourse to a private complaint, had depicted that he was only interested to see a criminal case registered against proposed accused through FIR---Held, most efficacious remedy for applicant would be to file a private complaint against proposed accused; as High Court even after directing the registration of a criminal case, could not control and regulate the investigation against them---Applicant failed to satisfy the court as to why so far applicant had not availed the remedy available to him under S.200, Cr.P.C.---No illegality was found in the impugned order passed by Justice of Peace---Applicant, could approach the appropriate forum through private complaint for redressal of his grievance, in accordance with law---Application for quashment of order was dismissed, in circumstances.

Asma Jahangir, Chairperson Human Rights Commission of Pakistan v. Senior Superintendent of Police (Operation), Lahore and 3 others 2005 PCr.LJ 1517 and Shadi Khan v. SSP Naushehro Feroz and others Criminal Petition No. 54-K of 2014 ref.

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

----Ss. 22-A, 22-B & 154---Registration of criminal case on application to Justice of Peace---Scope---Justice of Peace could pass order for registration of FIR, on the complaint, regarding non-registration of a criminal case, in terms of Ss.22-A & 22-B, Cr.P.C., if the facts and circumstances in a given situation would justify so---Justice of Peace was not supposed to conduct itself in mechanical manner, and issue such direction without applying its judicial mind to determine as to whether applicant had appeared before it with clean hands, having some genuine grievance, which needed an immediate attention for its redressal, or he had come to the court with a certain design to wreck havoc on his opponents by lodging FIR against them---Justice of Peace had to distinguish between an effort aimed at a palpable false implication to take revenge from the opponents as a bona fide complaint concerning the refusal of the SHO to record the statement in terms of S.154, Cr.P.C., by looking into facts and circumstances obtaining in each case before issuing directions for the registration of the FIR---Filing of application under Ss.22-A & 22-B, Cr.P.C., and consequent orders thereon for the registration of the FIR, could not be equated with an automatic procedure, which had to go by mechanically, without there being a judicial approach to the matter by the courts, for the courts, were not expected to act as the Post Office, meant to stamp such application and forward it to the S.H.O. concerned to register the FIR---Purpose behind enacting Ss.22-A & 22-B, Cr.P.C., was not to grant a licence to the people to cause harassment to the innocent persons, or to those who while in line of their duty take action against them by invoking the provisions under Ss.22-A & 22-B, Cr.P.C.

Imtiaz Ahmed Cheema, SHO v. SHO Police Station Dharki Ghotki and 2 others 2010 YLR 189 rel.

Alam Sher Bozdar for Applicant.

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

2015 P Cr. L J 856

[Sindh]

Before Syed Muhammad Farooq Shah, J

Syed QADIR BUX SHAH alias HAJAN SHAH and another---Applicants

versus

SHO BHAAN POLICE STATION and 2 others---Respondents

Criminal Miscellaneous Application No. S-591 of 2012, decided on 12th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 201 & 149---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information, common object---Application for quashing of order---Order, whereby Judicial Magistrate, not agreeing with the Police report, submitted by Investigating Officer under S.173, Cr.P.C. to dispose of FIR as cancelled 'C' class, had ordered said Investigating Officer to submit the challan against accused persons, had been sought to be set aside with a further prayer that the case could be remanded to concerned Magistrate to pass fresh order on the summary "C" class, and to quash the proceedings against applicant/accused arising out of FIR---Record had shown that statements of different persons, medical and circumstantial evidence, had not been discussed or considered by passing impugned order---Impugned order was set aside with the direction to the Magistrate to pass speaking and elaborate order strictly on merits after affording fair opportunity of hearing to both the parties.

Muhammad Nasir Cheema v. Mazhar Javed PLD 2007 SC 31; Syed Pariyal Shah v. Behram Ali 2012 PCr.LJ 189; Muhammad Farooq Qureshi v. Judicial Magistrate 2010 PCr.LJ 261; Syeda Afshan v. Syed Farukh Ali and 3 others PLD 2013 Sindh 423; Faisal Jaffery, ASI v. The State 2012 YLR 1089; Bakhsha Ali v. The State and 7 others 2013 YLR 1948; Saifal v. State 2012 YLR 287; Aurangzeb v. The State 2011 YLR 60; Zafar Gulzar v. SSP Special Branch and 3 others 2010 MLD 1012 and Abdul Hafeez Junejo v. The State 2010 YLR 470 ref.

Syed Madad Ali Shah for Applicant.

Mir Ahmed Mangrio for Respondents.

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

Date of hearing: 12th March, 2014.

2015 P Cr. L J 869

[Sindh]

Before Salahuddin Panhwar, J

TAHIR ALI---Appellant

versus

The STATE---Respondent

Criminal Appeal No. S-45 of 2014, decided on 6th November, 2014.

(a) Sindh Arms Act (V of 2013)---

----S. 23-B--- Constitution of Pakistan, Art. 10-A--- Possessing unlicensed arms---Appreciation of evidence---Accused claimed that no opportunity of representation by counsel was provided to him; and not a single question was asked from him, whether he intended to engage the counsel---Fair opportunity of hearing was one of the necessary requirements of administration of justice---Speedy trial, could not be termed to be an illegality, rather was within meaning of instructions, so issued to enforce the National Judicial Policy---Speedy trial should never be at the cost of the procedure, or rights for which one was, otherwise entitled; because, the ultimate object of administration of justice was to administer justice, and not speedy disposal of a lis/case---Article 10-A of the Constitution, could only be pressed where an order or judgment was passed by an authority/court in deviation of the prescribed procedure, which resulted into prejudice either party, because due process had always been the golden principle of administration of justice---Since law, nowhere, barred a trial of an ordinary offence, not providing capital punishment, without counsel, that could not be termed as "illegality"; because, if an unrepresented accused would earn his acquittal, then prosecution would not be allowed to seek de novo trial on that count alone---Such plea, was a single sided weapon which, if allowed to hold the field, would make accused to try their luck without engaging the counsel; and in case of conviction to seek de novo trial by pressing plea of being unrepresented---Impugned judgment was suspended by the High Court and case was remanded to the Trial Court to proceed de novo trial with direction to provide opportunity of engaging counsel, to accused.

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

----Arts. 132 & 133---Cross-examination---Testing the veracity and credibility of a witness was a legal right of accused which could be achieved through proper cross-examination.

Sajjad Ahmed Rind for Appellant.

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

Date of hearing: 6th November, 2014.

2015 P Cr. L J 875

[Sindh]

Before Shahnawaz Tariq, J

Mst. WAFA ANDALEEB---Applicant

versus

IMRAN BHATTI and 6 others---Respondents

Criminal Revision Application No. 130, M.As. Nos.5019 and 8439 of 2013, decided on 24th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 491---Scope of S. 491, Cr.P.C.---Habeas corpus petition---Conditional order---Application for custody of minor under S. 491, Cr.P.C.---Minor girl, who was aged about 4 years was living with her father---Trial Court handed over custody of minor to the (mother)/ applicant, and passed conditional order directing the applicant to furnish P.R. bond in the sum of Rs.100,000; not to leave the place 'K' along with minor without prior permission of the court and to arrange meeting of father with minor without creating any obstruction---Validity---Section 491, Cr.P.C., had a limited scope to provide immediate relief; and the court while dealing with the matter, where person, illegally or improperly detained in public or private custody within its limits, be set at liberty, or if a prisoner detained in any jail situated within such limits to bring before the court---Court while invoking its jurisdiction under S.491, Cr.P.C., must act strictly within the ambit of said section; and any direction beyond its provisions, would be illegal, and without jurisdiction--- No condition could be imposed in habeas corpus petition---No authority was conferred upon the court to pass any conditional or restricting order under S.491, Cr.P.C.---Proceedings under S. 491, Cr.P.C., were summary in nature to provide efficacious relief to aggrieved party---Order for the recovery of minor from custody of father to the extent of handing over to mother (applicant) was just and proper---Order passed under S.491, Cr.P.C. was interim order in nature, and was subject to the final adjudication by concerned court exercising its jurisdiction under provisions of Guardians and Wards Act, 1890---Applicant being real mother, was entrusted with the custody of minor, but court was not competent to impose restrictions and conditions on the applicant--- Impugned order was modified only to the extent of imposing of conditions on applicant, in circumstances.

Umer Farooq Khan for Applicant.

Shakeel Ahmed for Respondent No.1.

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

Date of hearing: 24th September, 2014.

2015 P Cr. L J 883

[Sindh]

Before Muhammad Ali Mazhar and Shaukat Ali Memon, JJ

SHAHID HUSSAIN---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 4 others---Respondents

Constitutional Petition No. D-4084 of 2014, decided on 6th February, 2015.

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

----S. 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Case of further inquiry---Determination of liability---Plea raised by accused was that he had been in custody for the past seven months whereas no specific role was assigned to him and so far examination in chief of only one witness was recorded---Validity---In order to thrash out liability and role of each individual accused, recording of evidence was necessary and at bail stage it could safely be concluded on the basis of available record that role of accused required further inquiry---High Court in exercise of constitutional jurisdiction allowed bail to petitioner---Petition was allowed in circumstances.

Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645 and Muhammad Jahangir Badar v. NAB PLD 2003 SC 525 rel.

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

----S. 497(2)---Bail---Case of further inquiry---Scope---Further inquiry is a question which must have some nexus with result of case for which tentative assessment of material on record is to be considered for reaching the just conclusion---Case of further inquiry pre-supposes tentative assessment which may create doubt with respect to involvement of accused in crime---Deeper appreciation of evidence is not permissible at bail stage.

(c) Criminal trial---

----Object, purpose and scope---Object of trial is to make accused to face trial and not to punish an under-trial prisoner---Basic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind the bars---Accused was entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable and inordinate delay---Intention of law is that criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice is likely to cause erosion of public confidence in judicial system on the one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries.

Ali Anwar Ruk and others' case 2014 PCr.LJ 186; 2015 YLR 216; 2015 YLR 108 and PLJ 2014 Karachi 268 ref.

Naheed Afzal for Petitioner.

Noor Muhammad Dayo, ADPG NAB for Respondents.

Date of hearing: 26th January, 2015.

2015 P Cr. L J 913

[Sindh]

Before Aftab Ahmed Gorar, J

ASHFAQ AHMED---Appellant

versus

ZAFAR IQBAL and 2 others---Respondents

Criminal Acquittal Appeal No. 230 of 2011, decided 16th June, 2014.

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

----Ss. 3 & 3---Criminal Procedure Code (V of 1898), S. 417(2-A)---Illegal dispossession of property---Appeal against acquittal---Scope of Illegal Dispossession Act, 2005---Appellant/complainant had challenged order passed by the Trial Court, whereby respondent accused had been acquitted of the charge against him---Old litigation existed between the parties over the plot of land in question; and both the parties had filed civil as well as criminal proceedings against each other---Scope of Illegal Dispossession Act, 2005, was very limited and the court exercising powers under S.3 of that Act was competent to give findings with regard to illegal dispossession; and it was not the function of such court to decide or adjudicate upon title of the property and/or to give any finding in regard to the authenticity of a document---Claim of the appellant/complainant that he was in possession of the plot in question on the crucial date, was belied by his own statement in his application, wherein he had stated that on the said date, respondent/accused was occupying the plot in question---Appeal filed by the complainant against acquittal of respondent/accused was dismissed, in circumstances.

2009 SCMR 1066; 2010 SCMR 1254; PLD 2009 Kar. 65; PLD 2008 Kar. 400; PLD 2007 SC 423; PLD 2008 Lah. 358; 2012 SCMR 229; 2012 MLD 1652; PLD 2008 Kar. 480 and YLR 2008 Lah. 2259 distinguished.

2009 PCr.LJ 199 and PLD 2001 SC 384 ref.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Approach for dealing with appeal against acquittal would be different and distinguishable from that of appeal against conviction, because in case of appeal against acquittal, presumption of double innocence of accused was attached to the order of acquittal---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.

(c) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubt---If a simple circumstance would create reasonable doubt in the 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.

Muhammad Nawaz Khan for Appellant.

Raja Basantani for Respondent No.1.

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

Date of hearing: 15th April, 2014.

2015 P Cr. L J 929

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

ABDUL BAQI alias TALAHA and 2 others---Appellants

versus

The STATE---Respondent

Criminal Anti-Terrorism Appeal No. 48 and Spl. Criminal Anti-Terrorism Jail Appeal No.57 of 2010, decided on 6th February, 2014.

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

----S. 2---"Explosive Substance"---Definition and scope---Provision of S.2 of the Explosive Substances Act, 1908, did not confine to the expression 'explosive substance', but same was widening one---Such definition had been made subject to, that any material should be available for making explosive substance, or causing any explosion---Such could be any material (substance), if it was established that the substance could be used for making explosive substance, or could be used for causing any explosion---Prosecution would continue to be under a mandatory obligation not only to prove recovery of substance (material), but its obligation would become grave to prove that such material or apparatus was such that same could either be used for making explosive substance, or could be used for causing any explosion.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4, 5 & 6---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Attempt to cause explosion, making or possessing explosives, abetment, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Prosecution witnesses had supported each other on all material aspects---Said witnesses stood firm on the manner of receipt of information during patrolling timing, their arrival at pointed place, and recovery of articles from the possession of accused persons---Defence had not pleaded any specific plea of enmity against said witnesses---In absence of any annoyance or enmity against Police Officials, evidence of Police Officials, could not be viewed with doubt, simply on their being Police Officials, but their evidence should be treated as that of a private person---Witnesses also identified the properties recovered from possession of accused persons---Recovery which was claimed to be explosive, was not only to be examined by the expert, but also required to be handled by the expert---Non-sealing of bags containing explosion by the Police party, was not only quite logical, but also reasonable---Purpose of sealing of the property was always to keep it in same position as it was recovered so as to eliminate chances of tampering therewith---Prosecution not only had proved the recovery of articles from the possession of accused persons, but also prima facie established the said articles to be explosive---Trial Court, in circumstances, had committed no illegality in believing the evidence---Prosecution did establish the recovery of pistols from the possession of accused persons---Report of Forensic, had confirmed that same were received with seals intact, and after report confirmed that weapons were in working order---Conviction awarded to accused persons by the Trial Court, was maintained, in circumstances.

Attaullah alias Qasim and another v. The State 2006 YLR 3213; Attaullah and another v. The State 2007 MLD 310; 1999 SCMR 1367; Kashif Saddique v. The State 2008 PCr.LJ 1039 and Munawar Shah v. The State 2004 MLD 200 ref.

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

----S. 173---Evidence of Police Officials---Police Officials were as good witnesses as private person could be---Evidence of the Police Officials, should not be doubted merely their being Police Officials, unless it was established that the Police Officials, had such annoyance or enmity with persons.

Abdul Sami for Appellant No.1.

Muhammad Ashraf Samoo for Appellant No.2.

Noman Shafiq for Appellant No.3.

Khadim Hussain and Ali Haider Saleem, A.P.-Gs. for the State.

Dates of hearing: 11th and 24th December, 2013.

2015 P Cr. L J 953

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

SAJAN and another---Appellants

versus

The STATE---Respondent

Special Anti-Terrorism Appeal No. D-241 of 2009, decided on 6th March, 2014.

(a) Criminal trial---

----Evidence---Even if major portion of evidence was found to be deficient, in case residue was sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused, his conviction could be maintained---Court was supposed to separate grain from chaff; where chaff could be separated from grain, it would be open to the court to convict accused notwithstanding the fact that the evidence had been found to be deficient to prove guilt of other accused persons.

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

----Ss. 365, 365-A & 342---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Kidnapping or abduction with intent secretly and wrongfully to confine person, kidnapping for ransom, act of terrorism---Appreciation of evidence---Case being of kidnapping for ransom, evidence of two abductees, the persons who paid ransom, could not be rejected; for the reasons that prosecution evidence was natural, coherent and rang true---Defence evidence appeared to be unbelievable and afterthought---Defence witness did not belong to the village from where abductees were kidnapped---Defence plea had not been put up to prosecution witnesses in cross-examination---Defence theory was not acceptable at all in circumstances---In order to constitute an offence of abduction for ransom, proof thereof was not sine qua non, and said offence also would stand constituted, if there was an abduction and the purpose of the abduction was extortion of ransom, or ransom was demanded for the release of the abductee---Demand, in the present case, was made by the culprits for payment of ransom for release of the abductees, which was actually paid---Trial Court had rightly appreciated the evidence---Both the abductees had stated that after abduction , accused chained them and they were recovered as a result of a Police encounter---Both abductees remained in captivity of accused for more than 40 days---Accused was caught red handed in the Police encounter and both abductees were recovered from his possession---All pieces of evidence brought on record by the prosecution connected accused in commission of offence---Offence had been committed by accused persons in the manner as alleged by prosecution---Prosecution witnesses had no reason to falsely implicate accused persons in the case of that nature---Prosecution had successfully proved its case against accused persons beyond reasonable doubt---Trial Court had dilated upon all aspects of case and appreciated evidence properly, accused had rightly been convicted, which required no interference.

State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

Habib Ahmed for Appellants.

Khadim Hussain Khuharo, Deputy Prosecutor-General Sindh for the State.

Syed Ahmad Ali Shah for the Complainant.

Date of hearing: 10th February, 2014.

2015 P Cr. L J 985

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

ABDUL GHAFFAR---Appellant

versus

The STATE---Respondent

Criminal Appeal No.D-34, Criminal Jail Appeal No. D-42 and Criminal Confirmation Case No.3 of 2010, decided on 28th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Place of incident being within the house of the complainant party, their presence was natural---Accused and the absconding accused, happened to be the close relatives of the complainant party; no possibility existed for mistaken identity of culprits by the complainant party---Two witnesses strongly stuck with regard to manner of whole the incident---Witnesses were subjected to cross-examination, but no material contradiction was brought on the record by the defence---Complainant and prosecution witness being real brothers of one deceased, and real sons of other one, substitution of real culprits by such blood relations, could not be believed---Said witnesses had also not been alleged to be interested witnesses---Cause or motive, taken by defence to justify false involvement, was the dispute over landed property---Mere words of dispute would never be sufficient to believe that real brothers and sons would let the blood of their sister and mother waste on such a dispute by substituting the real culprits with innocent person---Cause or motive of false implication of accused was not worth believing---Evidence of defence witness was contradictory to that of prosecution witnesses---Injuries described by the Medical Officer supported the ocular account with regard to claim of injuries to be result of fire-arm from a very short distance---Since the prosecution did not produce the Roznamcha entries of departure and arrival under which Assistant Sub-Inspector of Police was on patrolling when accused was arrested, a doubt crept with regard to manner of recovery of crime weapon---Since the matter of the recovery of crime weapon in a criminal case was not at all material, as it could only serve as a piece of supporting evidence, proved recovery was not essential at all---Motive, was neither logical nor was proved---Conviction awarded by the Trial Court, was patently harsh as the complainant and eye-witnesses, who claimed to have been present on the crime scene, were not attacked by accused; albeit motive had been attributed to them which by itself was an extenuating circumstance---Judicial propriety demanded that the death sentence awarded to accused could be converted to that of life imprisonment which would meet the ends of justice.

Asghar v. The State 1999 PCr.LJ 20; Muhammad Irshad and another v. The State 1999 SCMR 1030; Asadullah and another v. The State and another 1999 SCMR 1034; Sahibdino and others v. The State 2000 PCr.LJ 191; Syed Imtiaz Hussain Shah v. The State 2007 YLR 1920; Zahoor Ahmed v. The State 2007 SCMR 1519 and Hasil Khan v. State 2012 SCMR 1936 ref.

Habibullah G. Ghouri for Appellant.

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

Date of hearing: 16th April, 2014.

2015 P Cr. L J 1020

[Sindh]

Before Syed Muhammad Farooq Shah, J

ASHIQUE ALI---Appellant

versus

HABIBUR REHMAN and another---Respondents

Criminal Acquittal Appeal No.S-339 of 2012, decided on 11th March, 2014.

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

----S. 17(3)---Assistant Sessions Judges---Court of Assistant Sessions Judge was court like any other criminal court of a Magistrate; and the Sessions Judge/Additional Sessions Judge, could entertain and decide the revision, or bail application after the same was dismissed by an Assistant Sessions Judge.

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

----Ss. 417(2-A) & 410---Appeal against acquittal/conviction---Scope---No specific role in commission of the offence was assigned to accused, except abetment---Appeal against acquittal had distinctive features and approach to deal with---Appeal against conviction was distinguishable from appeal against acquittal; because presumption of double innocence was attached in case of acquittal---Order of acquittal, could only be interfered with when it was found on the face of it as capricious, perverse, arbitrary in nature, or based on misreading, non-appraisal of evidence, or was artificial, arbitrary and led to gross miscarriage of justice---Order/judgment of acquittal, would give rise to strong presumption of innocence, rather double presumption of innocence was attached to such an order---While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower courts, whereby accused were exonerated from the commission of crime---Acquittal would be unquestionable when it could not be said that acquittal was either perverse, or that acquittal judgment was improper or incorrect---Whenever, there was doubt about guilt of accused, its benefit must go to him, and court would never come to the rescue of prosecution to fill the lacuna appearing in the evidence of prosecution case it would be against established principles of dispensation of criminal justice.

Abdul Raheem v. Abdul Rauf and another 1983 PCr.LJ 1390; Parvez alias Puttar v. The State 1990 PCr.LJ 956; Askar Ali and others v. The State PLD 1959 SC 251; 1998 PCr.LJ 1576, 1985 PCr.LJ 2973; 1991 SCMR 2220; 1993 SCMR 28; 1985 PCr.LJ 457; PLD 1966 SC 424; 1998 SCMR 1281 and 1997 PCr.LJ 477 ref.

Muhammad Hashim Leghari for Appellant.

Faqir Rehmatullah Hisbani for Respondent No.1.

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

Date of hearing: 11th February, 2014.

2015 P Cr. L J 1044

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

Mir NAWAZ and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No. D-400 of 2010, decided on 19th February, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotic---Appreciation of evidence---Prosecution witnesses i.e. the complainant and Mashir of the arrest and recovery, had supported the prosecution case, and there appeared no infirmity in their evidence---Said witnesses did not differ from each other in respect of place of incident, time of occurrence, manner of incident, arrest of accused and recovery of narcotic substance from accused person---Contradictions pointed out by the counsel for accused persons, were minor, and were not fatal to the prosecution case---Defence counsel could not shatter the evidence of prosecution witnesses, who remained in line---Accused did not bring anything on record to show enmity or ill-will on the part of the prosecution witnesses to falsely implicate them, and foist such large quantity of the charas upon them---Was unbelievable that accused who were taking the truck were not in the knowledge of the material kept therein---Accused were apprehended on the spot along with 49 Kilograms, out of which 100 grams were separated from each packet, and were sent for Chemical Examiner on the same day, and the report of Chemical Examiner was in positive---Prosecution was able to prove its charge against accused persons beyond shadow of doubt---Conviction of accused persons by the Trial Court, did not suffer from any illegality or infirmity---No ground being available to interfere in the impugned judgment, appeal was dismissed.

Gul Amin v. The State 2007 PCr.LJ 483; Shahzada v. The State 2010 SCMR 841; Mushtaque v. The State 2002 PCr.LJ 1312 and Samiullah v. The State and another 2012 PCr.LJ 1477 distinguished.

Nandan A. Kella for Appellants.

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

Date of hearing: 19th February, 2013.

2015 P Cr. L J 1053

[Sindh]

Before Abdul Rasool Memon, J

MUDASSIR IQBAL---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.943 of 2014, decided on 21st August, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 25---Possessing and trafficking of narcotics---Bail, refusal of---No animosity was alleged against complainant/Police Official to foist the alleged narcotics material upon accused---Application of S.103, Cr.P.C. in the narcotic cases, having been excluded by virtue of provisions of S.25 of Control of Narcotic Substances Act, 1997, non-inclusion of any private witness was not serious defect to make the ground of bail---Mens rea of accused was to be gathered from deep appreciation of evidence, which was not permitted at bail stage---Case of accused did not fall within the prohibited clause of S.497, Cr.P.C. in circumstances---On five occasions, case was adjourned, either on the request of accused side or due to absence of defence counsel, delay in trial of case, in circumstances was also attributed to accused, which disentitled him to bail, even on the ground of alleged delay in trial---Bail application of accused, being devoid of merits, was dismissed, in circumstances.

Ali Muhammad alias Ali Kuchi v. The State 1994 PCr.LJ 1487; Zahid Hussain Shah v. The State PLD 1995 SC 49; Ghulam Murtaza v. The State PLD 2009 Lah. 362; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Abdur Rasool v. The State 2009 PCr.LJ 558; Muhammad Siddique v. The State 2011 YLR 2261; Ghazanfarullah Khan Pathan v. The State 2012 PCr.LJ 1613; Zafar v. The State 2008 SCMR 1257; Rasool Bux v. The State 2005 SCMR 731; The State v. Javed Khan 2010 SCMR 1989; Nadim Ashraf v. The State and others 1989 SCMR 1538; Sher Ali Sheri v. The State 1998 SCMR 190; Ameer Zeb v. The State PLD 2012 SC 380 and Nadeem Ashraf v. The State and others 2013 SCMR 1538 ref.

Rasool Bux v. The State 2005 SCMR 731; 2008 SCMR 1254 and Sher Ali Sheri v. The State 1998 SCMR 190 rel.

Amir Hyder Shah for Applicant.

Shafiq Ahmed, Special Prosecutor ANF for the State.

Date of hearing: 7th August, 2014.

2015 P Cr. L J 1074

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

Syed ALI RAZA SHAH and another---Appellants

versus

The STATE---Respondent

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

(a) Criminal trial---

----Evidence---Circumstantial evidence---Basis for conviction---Scope---Principle---Circumstantial evidence is to be considered as a chain and each piece of evidence is link in the chain, if any one link breaks, the chain fails---Circumstantial evidence can only form basis for conviction, when it is compatible with innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of guilt of accused---Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction can be maintained or awarded to accused---Absence of ocular evidence does not tantamount to acquit accused persons but conviction can be awarded on circumstantial evidence, if it surfaced that the same is connecting with all aspects with regard to commission of offence by accused persons.

(b) Criminal trial---

----Recovery---Crime weapon, recovery of---Corroborative piece of evidence---Mere recovery of alleged crime weapon is not sufficient to claim conviction in absence of direct evidence or lest it finds support from other pieces of evidences making a chain of unbroken links, which too should be above board and doubts---Recovery of crime weapon does not prove charge but it is direct or circumstantial evidence which establishes material part of charge i.e. manner in which offence is committed by use of such weapon---Status of recovery of crime weapon is only a corroborative piece of evidence in joining links of chain by proving guilt.

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

----S. 364-A---Abducting a person under the age of fourteen---Appreciation of evidence---Extra judicial confession by co-accused---Scope---Such extra judicial confession could not be used against accused---Trial Court was right in acquitting other co-accused persons whose case stood on the same set of evidence---Principles of appreciation of evidence were one and the same therefore, acquittal of some of the accused persons and conviction of other was not within the spirit of safe administration of justice---Courts are always under heavy duties while sifting grain from chaff---Set of evidence against accused was the same as was against those co-accused persons who had been acquitted from the charge, therefore, he was entitled for same treatment---Prosecution failed to establish charge against accused beyond reasonable doubt---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

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

----Art. 40---Fact proved by subsequent fact is admissible.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd and act of terrorism---Appreciation of evidence---Extra judicial confession---Recovery of dead body---Corroboration---Extra judicial confession of 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 contradictions or mere delay alone in lodging of FIR were not helpful to accused to claim his acquittal---Each piece of circumstantial evidence fitted in another and made out a chain, which was sufficient to hold accused guilty of offence---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Mushtaque Ali's case 2004 SCMR 204 rel.

Syed Jaffer Ali Shah for Appellants.

Zulfiqar Ali Jatoi, DPG for the State.

Date of hearing: 28th February, 2013.

2015 P Cr. L J 1096

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

JALALUDDIN---Appellant

versus

The STATE---Respondent

Cr. Appeal No. D-23 of 2002, decided on 30th April, 2014.

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

----S. 13(e)---Replacement of official rifle---Appreciation of evidence---Allegation against accused, who was Police constable, was that he replaced official rifle allotted to him---Prosecution case was highly doubtful, for the reason that no direct evidence had been produced at the trial in order to substantiate the charge that official rifle was really substituted by accused---Possibility of alleged substitution, could not be ruled out in the 'Malkhana'---After recovery of the rifle in question, it was not sent to the Ballistic Expert for his report---In absence of expert opinion, it could not be held with legal certitude that weapon (rifle) was really the kind alleged by the prosecution---Prosecution had failed to bring on record entry/order whereby alleged weapon was officially allotted to accused---No date had been mentioned by the prosecution on which accused had substituted said weapon---At the time of checking accused was not present at the Police picket, but only weapon (rifle) was lying there---Such circumstance was also fatal for the prosecution---Assistant Sub-Inspector of Police, concerned had failed to produce before the Trial Court the departure entry to satisfy the court that he had actually left along with Deputy Superintendent of Police for checking the weapons---Said ASI had also failed to identify the case property before the Trial Court---Co-accused who was convicted by the Trial Court, in identical circumstances had been acquitted---Prosecution having failed to prove its case against accused beyond reasonable shadow of doubt, conviction and sentence awarded to accused, were set aside, he was acquitted of the offence charged with.

(b) Criminal trial---

----Benefit of doubt---Scope---While extending benefit of doubt to an accused, it was not necessary that there should be many circumstances which would create doubts---If a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to award such benefit, not as a matter of grace and concession, but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Naushad Ali Tagar for Appellant.

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

Date of hearing: 23rd April, 2014.

2015 P Cr. L J 1133

[Sindh]

Before Sadiq Hussain Bhatti and Abdul Maalik Gaddi, J

ABDULLAH BHUTTO---Appellant

versus

The STATE---Respondent

Criminal Appeal No. D-51 of 2005, decided on 12th November, 2014.

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

----Ss. 6, 7, 8, 9(c), 14, 15 & 29---Penal Code (XLV of 1860), Ss.380, 381, 406, 408 & 409---Criminal Procedure Code (V of 1898), S.403---Qanun-e-Shahadat (10 of 1984), Art.19---Constitution of Pakistan, Art.13(a)---Possessing and trafficking of narcotics---Theft in dwelling house, theft by clerk or servant, criminal breach of trust, criminal breach of trust by clerk or servant, public servant---Double jeopardy---Appreciation of evidence---Case against accused was bifurcated in three parts, on direction of Trial Court, and challan was submitted in three counts respectively---Case under Ss.380 & 381, P.P.C. was challaned and submitted in the court of Judicial Magistrate at place 'S', while offence under Ss.406, 408 & 409, P.P.C. in court of Special Judge Anti-Corruption at place 'L' and for offence under Ss.9(c), 14 & 15 of Control of Narcotic Substances Act, 1997 in the court of Special Judge (Control of Narcotic Substances) at place 'S'---Accused, had been finally acquitted in first two challan cases regarding theft and misappropriation of charas lying in the Record Room of a court---Section 9(c) of Control of Narcotic Substances Act, 1997, which was punitive clause, would come into play only when contravention of Ss.6, 7 & 8 of the Act, was made by accused---Person who was found in possession of narcotic, or was indulged in import and export of narcotic, or was found involved in trafficking of narcotic, could be convicted and sentenced under S.9(c) of Control of Narcotic Substances Act, 1997---Present case of the prosecution was not that accused was found importing or exporting the contraband narcotics in any manner---Contraband charas, was allegedly kept in "Malkhana" of which accused being Police Official was incharge of charas in question, which was allegedly misappropriated for monetary gains---Accused had been acquitted of the charges of misappropriation and theft by both the Trial Courts respectively---Prosecution having failed to prove the primary charges of the theft and misappropriation case of prosecution could not succeed on the same set of evidence in view of Art. 19 of the Qanun-e-Shahadat, 1984, merely for the reason of the act of possessing and trafficking the contraband charas---Accused having already been acquitted by two different courts of the charges of theft and misappropriation in the same crime, therefore, rule that no one would be vexed twice for the same offence, was fully applicable in the present scenario of the case---Conviction and sentence awarded to accused by the Trial Court, were set aside, and accused was acquitted of the charge and his bail bond stood cancelled and surety was discharged, in circumstances.

Muhammad Jahangir Badar v. Chairman NAB and others 2004 SCMR 1632 and Muhammad Ashraf and others v. The State 1995 SCMR 626 ref.

(b) Criminal trial---

----Evidence---Circumstantial evidence---Scope---Each circumstance should be linked with the other---Fundamental principle of universal application in depending on circumstantial evidence was that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt---Where more than one possible interpretation of the circumstantial evidence could be made the interpretation favourable to accused must be adopted, unless there was some strong reason not to adopt such interpretation---Court had to examine the probabilities in the light of circumstances of each case---Lack of direct evidence, connecting accused with the commission of offence, would give rise to reasonable doubt resulting in acquittal of accused being blue-eyed child of law.

Asif Ali Abdul Razzak Soomro for Appellant.

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

Date of hearing: 12th November, 2014.

2015 P Cr. L J 1148

[Sindh]

Before Syed Muhammad Farooq Shah and Salahuddin Panhwar, JJ

REHMATULLAH alias PAPPU and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No. D-37 of 2012, decided on 7th March, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution witnesses being Police Officials, was not sufficient to disbelieve their evidence, in the present case, evidence of said witnesses, did not find support from medical evidence---Cases of narcotics, could rest only, if it was established that articles recovered were in fact, contraband articles and not otherwise---Status of the recovery, in narcotics matters, could only be determined through Chemical Examiner, and not on mere words of the prosecution---Where chemical report was negative, or was doubtful, conviction could not legally be sustained---Prosecution witness, who was Police Official, had stated that he had not written the date of seizure, place of recovery and type over the parcels---Mistaken date was typographical, and there was every possibility that property might have been foisted upon accused persons---Such aspect created reasonable doubt to the prudent mind and shattered credibility of the witnesses---Single dent in the prosecution case was sufficient to extend benefit of such dent in prosecution case and in favour of accused persons---Impugned judgment was not maintainable under the law, and same was liable to be set aside, in circumstances---Plea of prosecution that accused who was involved in various cases of narcotics, being habitual offender, inference could be drawn against him, was repelled because mere registration of criminal cases was not sufficient to hold one as guilty---First Information Report would not declare any body to be culprit, but it was the verdict of the court of law only which could do so---Accused was to be presumed innocent, until found guilty---Order accordingly.

Amjad Ali v. The State 2012 SCMR 577; Muhammad Aslam v. The State 2011 SCMR 820; Trinity Private School and another v. Mumtaz H. Hidayatullah and others 1997 SCMR 494 and Tariq Mahmood v. The State through Deputy Attorney General Peshawar PLD 2009 SC 39 ref.

Abdul Baqi Jan Kaker for Appellants.

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

Date of hearing: 7th March, 2013.

2015 P Cr. L J 1212

[Sindh]

Before Abdul Rasool Memon and Salahuddin Panhwar, JJ

MUHAMMAD YOUSAF KHARL and another---Petitioners

versus

PROVINCE OF SINDH through Chief Secretary Sindh and 6 others---Respondents

Constitutional Petition No.D-190 of 2014, decided on 18th December, 2014.

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

----Ss. 6 & 9(c)---Criminal Procedure Code (V of 1898), S.156---Constitution of Pakistan, Art.199---Constitutional petition---Possessing and trafficking of narcotics---Quashing of proceedings---Re-investigation of FIR---Petitioners had prayed for quashing of proceedings in the case, and alternatively, they prayed for further/re-investigation of FIR---Validity---'Alternative' prayer should always be within four corners of main relief, because relief was always sought with reference to pleadings (narration of facts)---"Alternative" prayer/relief, in the present case, did not appear to be within four corners of main prayer/relief---Petition for quashment i.e. main prayer, had already met the fate of dismissal---Petitioner had insisted for re-investigation of the case on the basis of cell data record of Investigating Officer (witness) and urged that on the day of offence said witness (Investigating Officer) was not present at the place of incident---Petitioner claimed that they were earning million of rupees in a month having established business, therefore they could not be carrier of narcotics---First Information Report involving 300 kgs. narcotics could not be quashed, because absence of Investigating Officer and not his phone would matter---Possession of narcotics, if established, would be sufficient to prove the charge---Details of story, being believable or otherwise, was not a sufficient ground to claim re-investigation, which could not be insisted, unless prima facie it was established that Investigating Officer was motivated; and had conducted investigation, which was result of colourful exercise, mala fide and excess of jurisdiction---All the grounds, taken by the petitioners, were of such a nature that the same would fall within the meaning of 'defence'---Accused persons, would have fair opportunity to agitate such grounds including production of relevant Cell Phone data, if any---Investigation, was the domain of the Investigating Agency, which could not be legally directed to investigate a particular line---Petitioners having filed petition before High Court on similar issue that was dismissed with cost, High Court could not sit over the order already passed, when such order was not assailed before the apex court---Petitioners had failed in establishing any exceptional circumstance, where direction for re-investigation could be ordered under Constitutional Jurisdiction, which normally was not within scope of Art.199 of the Constitution---Constitutional Jurisdiction could come into play, for help of justice, but not to shoulder wishes of one for getting a legal thing at his sketched lines---Petitioners would have ample opportunity to agitate their pleas before the competent Trial Court---Petition being not maintainable, was dismissed, in circumstances.

PLD 2005 SC 511; PLD 1983 SC 344; PLD 2005 Kar. 164; 2006 CLC 694; 1993 CLC 2478 and 2004 YLR 2200 ref.

Sarfraz Ali Metlo for Petitioners.

Allah Bachayo Soomro, Additional A.-G.

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

Date of hearing: 18th December, 2014.

2015 P Cr. L J 1227

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

GHULAM HAIDER and another---Appellants

versus

The STATE---Respondent

Criminal Jail Appeals Nos.129 and 130 of 2011, decided on 31st January, 2013.

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

----Ss. 302, 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of the peace, common intention---Appreciation of evidence---Evidence of the eye-witnesses was trustworthy and reliable---Said witnesses had highlighted each and every aspect of tragic incident without making any glaring contradictions, omissions or concealment in their statements---All the witnesses had categorically deposed that accused fired the fatal shot, which caused death of deceased---Medical evidence was not contradictory to the ocular evidence---Prosecution witnesses were subjected to lengthy cross-examination, but nothing favourable to accused came on record---Ocular evidence, was corroborated by medical evidence, strong motive and long abscondence of accused---Trial Court had rightly appreciated the prosecution evidence in its true perspective as murder of an innocent person had been committed by accused due to old enmity on account of admitted matrimonial dispute---Circumstances of the case had disentitled accused to any leniency in sentence---Accused deserved the normal penalty of death, which was rightly awarded to him by the Trial Court---Death sentence awarded to accused and murder reference made by the Trial Court was accepted and his appeal was dismissed, in circumstances.

Sheeraz Asghar v. The State 1995 SCMR 1365; Imam Ali v. The State 2011 PCr.LJ 1398; Muhammad Latif v. The State PLD 2008 SC 503 and Safdar Abbas and other v. The State 2008 MLD 1007 distinguished.

(b) Criminal trial---

----Interested witness---Statement of the witnesses on account of being interested witnesses, could only be discarded, if it was proved that an interested witness had ulterior motive on account of enmity or any other consideration---Evidence of interested witnesses could be taken into consideration without corroboration, and even uncorroborated version could be relied upon, if supported by surrounding circumstances.

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

----Ss. 302, 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Case of co-accused was distinguishable from the case of accused, particularly in the circumstances, when co-accused (brother of accused) was armed with double barrel gun, but he did not cause any injury to the deceased or prosecution witnesses---Even no overt act was attributed to co-accused---Complainant in his FIR had assigned no role to co-accused, but at the trial deposed that he instigated accused not to leave the complainant party---Law did not recognize such improvement in evidence at the trial, without any legal justification---Background of enmity existed between the parties---False implication of co-accused (brother of accused), in circumstances, could not be ruled out---Circumstance that co-accused was armed with gun, but did not use it in commission of offence, had created reasonable doubt about his involvement in case---By way of abundant caution, while extending benefit of doubt, co-accused was acquitted of the charge; his bail bond stood cancelled, and surety was discharged and the appeal to his extent was allowed, in circumstances.

Muhammad Ashraf Kazi for Appellants.

Khadim Hussain Khoonharo, Deputy Prosecutor-General Sindh for the State.

Amir Mansoob Qureshi for the Complainant.

Date of hearing: 15th January, 2013.

2015 P Cr. L J 1251

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

MUHAMMAD IQBAL MAKRANI---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.235 and Confirmation Case 4 of 2010, decided on 23rd April, 2013.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Testimony furnished by complainant and other prosecution witness, was trustworthy and reliable---Complainant who had highlighted each and every aspect of the case, his presence at the place of incident was natural, incident having occurred outside of his house in the street---Other prosecution witness had also given probable cause of his presence in that street at the time of incident---Said eye-witness had no difficulty to identify accused at the time of incident---Complainant and prosecution witness and no previous enmity or motive to falsely implicate accused in the case---No reason existed, in circumstances, to disbelieve such strong ocular evidence---Prosecution had also succeeded to prove the motive against accused for commission of offence---Ocular evidence was corroborated by medical evidence on all points---Variation as highlighted by counsel for accused in medical evidence, would not be fatal for prosecution case for the reasons that ocular evidence in the case was coherent and trustworthy and medical evidence would not over-weigh such confidence inspiring evidence---Mere relationship between the witnesses and deceased was not enough to discard their evidence; when both the eye-witnesses were subjected to lengthy cross-examination and nothing favourable to accused came on record---Ocular evidence was corroborated by recovery of the dagger from an abandoned plea; which was in exclusive knowledge of accused---Report of Medical Examiner with regard to the blood-stained dagger was also positive; and contradictions as highlighted by defence counsel in prosecution evidence were of minor nature, and same were bound to occur after lapse of time---Such minor contradictions would not be fatal to prosecution case---Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt, and the Trial Court had rightly appreciated the evidence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Sentence, quantum of---Mitigating circumstance---Case was of pre-planned and pre-meditated cruel murder and no mitigating circumstance had been pointed out---If charge of qatl-i-amd was proved against accused, normal penalty of death should be awarded, and leniency in any case should not be shown except where strong mitigating circumstances for lesser sentence were brought on record---Circumstances of the case had disentitled accused to any leniency in the sentence and accused deserved normal penalty of death, which had rightly been award to him by the Trial Court---Same was maintained and confirmed.

(c) Criminal trial---

----Medical evidence---Medical evidence could only establish the type of weapon used, seat of injuries and nature of injuries.

Muhammad Akram v. The State 2009 SCMR 230; Khurshid Ahmad v. Kabool Ahmad and others PLD 1964 (W.P.) Karachi 356; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Muhammad Amir alias Muskhi and 3 others v. The State PLD 1977 Kar. 695; Ata Muhammad and another v. The State 1995 SCMR 599; Nawab and another v. The State 1979 PCr.LJ 736; Piaremian v. The State 1978 PCr.LJ 369; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Wahid Bux v. The State PLD 1963 (W.P.) Kar. 837; Khan v. The Crown PLD 1955 Sindh 65; Ahmad and another v. The State 1977 PCr.LJ 662; Lalan and 2 others v. The State 1976 PCr.LJ 52; Rasool Bux and another v. The State 1980 SCMR 225; Charan Singh and others v. State of Punjab AIR 1975 Supreme Court 246 - 1974 Cri.LJ 1253; Makhan and 3 others v. The State PLD 1977 Lah. 722; Ibrahim and another v. The State PLD 1969 Kar. 33; Mehr Ali and others v. The State 1968 SCMR 161; Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214 and Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274 distinguished.

Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Anwar Shamim and another v. The State 2010 SCMR 1791; Zakir Khan and others v. The State 1995 SCMR 1793; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 rel.

A.Q. Halepota for Appellant.

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

Date of hearing: 10th April, 2013.

2015 P Cr. L J 1287

[Sindh]

Before Salahuddin Panhwar, J

IMAM BUX and 2 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. S-53 and M.As. Nos. 2611 to 2621 and 4517 of 2013, decided on 12th November, 2014.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Compromise---Accused persons had moved two applications, one under S.345(2), Cr.P.C. for permission to compound, and other under S.345(6), Cr.P.C. regarding their acquittal on compromise arrived at between the parties---Accused persons had claimed that mother of deceased was only competent legal heir to compound the offence---According to report of Mukhtiarkar, legal heirs of the deceased were mother, sister and husband of deceased, who was one of the convicts---One daughter of deceased aged about one year had expired after the death of her mother---Sister of the deceased was lunatic---Plea of accused was that, in circumstances, the mother of the deceased, could competently compound the offence, excluding other legal heirs of the deceased---Validity---Child of the deceased, was also to be taken as 'heir of the deceased/victim' as mentioned in Column III of the table provided in S.345, Cr.P.C.---Subsequent death of said child would not take away the status of heir of the deceased/victim---Child of deceased, having not been shown, compromise could not be said to be complete, which required waiver of right of Qisas and Diyat by all the heirs; such right being inheritable by the successors of any legal heir of the victim, who during his life time, had either not entered into compromise with the convict; or refused to enter into such compromise---Compromise application having not been filed by "all the legal heirs" (term 'all the legal heirs' would include child (daughter of deceased/victim))---Compromise application, being not complete, was dismissed, as no acquittal could be allowed on the ground of compromise, if a single legal heir, had not consented thereto---Parties would be at liberty to submit compromise application, if all heirs so agreed--- Order accordingly.

2006 SCMR 1916; Abdul Rashid v. State 2013 SCMR 1281 and Muhammad Tufail v. Sessions Judge, Attock PLD 2004 SC 89 ref.

Mumtaz Ali Leghari for Appellants.

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

Date of hearing: 30th October, 2014.

2015 P Cr. L J 1311

[Sindh]

Before Sajjad Ali Shah and Sadiq Hussain Bhatti, JJ

Syed SOHAIL HASSAN---Petitioner

versus

The STATE through Chairman, National Accountability Bureau and 3 others---Respondents

Constitutional Petition No. D-1788 of 2013, decided on 11th February, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r) & 9(a)(viii), (xi)--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Wilful default or criminal breach of trust---Pakistan International Airlines Corporation (PIAC) filed complaint alleging the petitioner as wilful defaulter of its dues---National Accountability Bureau (NAB) investigated the matter without reference from Governor State Bank of Pakistan and filed reference of criminal breach of trust---Validity---Firm of petitioner and its partners were entrusted dominion over its property by PIAC in the capacity of agents and were under a legal obligation to render true and lawful accounts and to deposit with PIAC all collections on their behalf---Failure of petitioner to do so amounted to committing criminal breach of trust in respect of property so entrusted and therefore, it was within the competence of Chairman National Accountability Bureau under S. 9(xi) of National Accountability Ordinance, 1999, for which neither permission from Governor State Bank of Pakistan was required nor a notice in terms of S. 5(r) of National Accountability Ordinance, 1999, was liable to be issued---PIAC in its complaint requested Chairman National Accountability Bureau to take cognizance against the firm as "wilful defaulter" but from bare perusal of complaint filed by PIAC, relationship between the firm and PIAC was established as of principal and agent and an alleged criminal breach of trust, therefore, it was well within the competence of Chairman National Accountability Bureau to take cognizance of the offence in appropriate provision of National Accountability Ordinance, 1999---High Court declined to quash the reference filed by National Accountability Bureau against petitioner---Petition was dismissed in circumstances.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 905 and Messrs Kaloodi International (Pvt.) Ltd. v. Federation of Pakistan PLD 2001 Kar. 311 ref.

Muhammad Anwar Tariq for Petitioner.

Noor Muhammad Dayo, Additional DPGA, NAB.

Date of hearing: 11th February, 2015.

2015 P Cr. L J 1329

[Sindh]

Before Zafar Ahmed Rajput, J

GUL MUHAMMAD---Applicant

versus

The STATE---Respondent

Criminal Miscellaneous Application No. 368 and M.A. No. 10340 of 2014, decided on 8th April, 2015.

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

----Ss. 561-A & 190(c)----Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd---hurt and common intention---Cognizance of offence---Nature of proceedings---Application for quashment of order---Inherent powers of High Court---Scope---Police finding accused innocent during investigation, released him under S. 169, Cr.P.C., but Magistrate taking cognizance of offence against all the accused persons, refused to release the accused (applicant)---Complainant, daughter of deceased, supported statement of accused (applicant) that he had been mistakenly implicated in the case, due to which she had lodged second FIR against real culprits---Validity---No eye-witness had implicated the accused (applicant)---Magistrate had not looked into record before him and passed impugned order without deliberating on statement of complainant---Judicial Magistrate was not bound to agree with report submitted by police under S. 173, Cr.P.C., and he was at liberty either to agree or disagree with conclusions reached by investigating officer subject to giving cogent reason for conclusion arrived at by him and his conclusion must have been laced with evidence showing application of judicial mind---Statements of eye-witnesses were sufficient to establish that prima facie prosecution had no evidence against the applicant to connect him with the case---Trial of applicant, in circumstances, would amount unnecessary harassment to him and proceedings before trial court would be abuse of process of law---High Court setting aside order of Magistrate quashed proceedings of trial to the extent of accused-applicant---Application was accepted accordingly.

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

----Ss. 173 & 190(c)--- Police report under S. 173, Cr.P.C.---Cognizance of offence---Nature of proceedings---Duty of Magistrate---Taking cognizance of offence is a judicial act---Judicial Magistrate is not bound to agree with report submitted by police under S. 173, Cr.P.C., and he is at liberty either to agree or disagree with conclusions reached by investigating officer subject to giving cogent reason for conclusion arrived at by him and his conclusion must be laced with evidence showing application of judicial mind.

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

----S. 561-A----Inherent powers of High Court---Scope---Court cannot sit as investigator but matter can be looked into to find out as to whether prima facie case exists against accused on facts disclosed in FIR and from statements of prosecution witnesses, and proceedings is truly intended to secure ends of justice or otherwise factually abuse of process of law.

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

----S. 561-A----Inherent powers of High Court---Scope---Grounds for exercise of inherent powers---Provision of S. 561-A, Cr.P.C. contemplates inherent powers of High Court to make such orders as deem appropriate to give effect to any order passed under Criminal Procedure Code, 1898 or to prevent abuse of process of any court or otherwise to secure ends of justice on the grounds: (i) when case is of no evidence; (ii) when registration of case is proved to be mala fide on face of record; (iii) when case is of purely civil nature, and criminal proceedings are not warranted in law; (iv) when there is serious jurisdictional defect; and (v) when trial of accused would amount to unnecessary harassment.

Muhammad Ramzan v. M. Ashraf Bhatti and others 1992 PCr.LJ 276; Inayatullah and 4 others v. The State 1999 PCr.LJ 731; The State v. Asif Ali and another 1994 SCMR 798 and Muhammad Younus and 3 others v. Sardar Baqir Ali and another 1977 SCMR 4 rel.

Muhammad Ashraf Kazi for Applicant.

Nisar Ahmed Dogar for the Complainant and L.Rs. of deceased Muhammad Hasan.

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

Date of hearing: 8th April, 2015.

2015 P Cr. L J 1357

[Sindh]

Before Zafar Ahmed Rajput, J

MUHAMMAD RAZA QADRI---Appellant

versus

ASIF IQBAL and 2 others---Respondents

Criminal Acquittal Appeal No.462 of 2011, decided on 29th January, 2015.

Penal Code (XLV of 1860)---

----Ss. 202, 204, 392 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Robbery, intentional omission to give information of offence by person bound to inform, destruction of document to prevent its production as evidence, common intention---Appeal against acquittal---Reappraisal of evidence---FIR, in the case, initially was registered against three unknown persons for offence of robbery, which had been disposed of in 'A' class---Accused persons, who were Operation Manager and Branch Manager respectively of the Bank, were charged sheeted under Ss.202, 204, 34, P.P.C., for intentionally omitting to give information respecting the offence, which they were legally bound to give; and destroying the video recording of CCTV footage by deleting it for which they might be lawfully compelled to produce as evidence before the court---Section 202, P.P.C., had no application at all in the case, so far the facts and circumstances of the case were concerned---Prosecution, had no evidence to show that accused persons, were in any way responsible for destruction or erasing of alleged CCTV video recording---Charges against accused persons were groundless; and there was no probability of their conviction in any offence---Trial Court, had recorded the reason for its order of acquittal, which were based on material on record; and the conclusion drawn by the Trial Court was appropriate---Magistrate, had unrestricted powers to acquit accused at 'any stage' of the case, which could even be the stage before framing of the charge and recording of evidence, if Magistrate for "reason to be recorded" would consider that "the charge against accused was groundless" or that "there was no probability of accused being convicted of any offence"---Prosecution, had no evidence to substantiate the charge against accused persons under Ss.202, 204, 34, P.P.C.---Accused persons had neither claimed any enmity, nor even they had been acquitted by the Trial Court on the ground---No illegality or infirmity existed in impugned order of acquittal which was passed by the court on proper reason---No exceptional grounds being available for interference in the impugned order, acquittal appeal, being devoid of merit, stood dismissed, in circumstances.

Mst. Said Khanum v. Munsif Khan and 7 others PLD 1992 Pesh. 71 and Syed Anwar Ali Shah v. Yar Muhammad and 3 others 1986 PCr.LJ 1278 distinguished.

Sathi M. Ishaq for Appellant.

Kashif Hanif for Respondents Nos.1 and 2.

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

Date of hearing: 29th January, 2015.

2015 P Cr. L J 1402

[Sindh]

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

AMEER HAMZA alias HAMZA---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 271 of 2013, decided on 14th May, 2014.

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

----S. 9(c)---Possessing, trafficking of narcotics---Appreciation of evidence---In view of material contradictions between the evidence of prosecution witnesses, and admission of prosecution witnesses that charas was recovered from accused, prosecution had failed to prove its case beyond any reasonable doubt---Impugned conviction and sentence could not be maintained---Judgment of conviction was set aside and accused was acquitted, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt, 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 could be entitled to the benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. State 1995 SCMR 1345 ref.

Fazalur Rehman Awan for Appellant.

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

2015 P Cr. L J 1413

[Sindh]

Before Syed Saeeduddin Nasir, J

HIZBULLAH---Applicant

versus

JUDICIAL MAGISTRATE-I, ROHRI---Respondent

Criminal Miscellaneous Application No.S-397 of 2014, decided on 8th August, 2014.

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

----S. 540-A---Exemption to an accused from personal appearance during trial---Scope---Section 540-A, Cr.P.C. implicitly dealt with a situation where there were two or more accused in court facing inquiry or trial and subsequently had become incapable of remaining before the court---Plain meaning of the words (of S. 540-A, Cr.P.C.) indicted that accused had to be physically present before the Court, and subsequently, if he had become incapable of remaining before the Court, exemption (from appearance) could be granted for reasons to be recorded---Normally, the accused had to be physically present in the Court for claiming exemption and if the Court was satisfied about his incapacity for claiming exemption, it may grant exemption---Exemption from appearance could be granted in absence of accused in extremely exceptional cases such as his ailment rendering difficulty in movement.

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

----S. 540-A---Criminal trial---Exemption to an accused from personal appearance--- Medical reasons---Exemption from appearance granted in absence of accused---Scope---Exemption from appearance before court could be granted to accused in his absence in extremely exceptional cases such as his ailment rendering difficulty in movement---Accused-applicant, in the present case, was suffering from serious ailment (prolapsed intervertebral disc and spinal stenosis) and was unable to attend court--- Medical record of accused showed that the doctor had advised him complete bed rest, and if he travelled or moved on stairs, then such carelessness would be dangerous and result in paralysis of lower part of his body---High Court directed that in such circumstances, the attendance of the accused before Trial Court was dispensed with and he was allowed to appear through his pleader on each date---Application was allowed accordingly.

Miss Saima Katto for Applicant.

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

Date of hearing: 8th August, 2014.

2015 P Cr. L J 1422

[Sindh]

Before Abdul Maalik Gaddi, J

GULAN---Applicant

versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-646 of 2011, decided on 19th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Application for superdari of vehicle---Owner not accused---Vehicle in question was taken into possession by authorities as it contained illegal crude oil in it, while driver and other persons escaped from spot---Validity---By virtue of registration book, which was available on record, applicant was lawful owner of vehicle, who was earning his livelihood by plying the vehicle on rent---Applicant was not accused person in the case and nothing was on record to show that applicant had any knowledge that accused/driver would use vehicle for committing any offence---Right of owner who had no knowledge of commission of any offence was fully protected---Vehicle in question was parked in open space exposed to vagaries of weather, its retention in police custody for indefinite period would also achieve no useful purpose---No rival claimant of the vehicle came forward either before High Court or before the Courts below to claim ownership of property in question---High Court directed Station House Officer of police station concerned to release vehicle in question to the applicant on superdari---Application was allowed in circumstances.

Shakeel Arshad v. The State 2008 MLD 1603; Ali Muhammad Kalhoro v. The State 2004 YLR 943; Zaheer Khan v. The State 2004 YLR 3198 and Ajjab Khan v. The State 2005 PCr.LJ 1510 ref.

Ahsan Gul Dahri for Applicant.

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

2015 P Cr. L J 1433

[Sindh]

Before Shahnawaz Tariq, J

BABAR GUL---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.S-1141 of 2014, decided on 11th May, 2015.

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

----S. 497(2)---Penal Code (XLV of 1908), S.302---Qatl-i-amd---Bail, grant of---Further inquiry---FIR lodged against unknown persons regarding blind murder---Delay of eighteen days in lodging FIR---Recovery, absence of---Benefit of doubt---Principles---Accused was implicated on extra-judicial confession/hearsay information---No explanation had been furnished in FIR for delay of eighteen days in lodging the FIR---Incident was un-witnessed---Body of deceased could not be recovered---Star prosecution witness during his examination had not implicated accused regarding commission of alleged offence---No prosecution witness in statement under S.161, Cr.P.C. had deposed against accused---No evidence had been placed on record regarding involvement of accused in the commission of alleged offence---Deeper appreciation of evidence could not be gone into at bail stage as it might prejudice case of either party, only tentative assessment of available material was to be made just to find out prima facie clue connecting accused with alleged offence or otherwise---Slightest benefit of doubt even at bail stage, would be counted in favour of accused---No imminent apprehension of tampering with prosecution evidence existed as remaining prosecution witnesses were police officials---Applicant remained behind bars for about eighteen months, but prosecution had examined only one witness---Bail could not be withheld as punishment---Bail was granted on ground of further inquiry---Bail application was accepted accordingly.

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

----S. 497(2)---Bail, grant of---Appreciation of evidence---Scope---Deeper appreciation of evidence cannot be gone into, as it may prejudice case of either party---Only tentative assessment of available material is to be made just to find out prima facie clue connecting accused with alleged offence or otherwise.

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

----S. 497(2)---Bail, grant of---Benefit of doubt---Slightest benefit of doubt even at bail stage, shall be counted in favour of accused.

Shahnawaz Brohi for Applicant.

Syed Meeral Shah, D.P.G.

2015 P Cr. L J 1441

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM MUHAMMAD---Applicant

versus

The STATE---Respondent

Criminal Revision Application No.S-08 and M.A. No.5080 of 2014, decided on 6th January, 2015.

Criminal Procedure Code (V of 1898)---

----S. 514---Surety bond, forfeiture of---Reduction in fine imposed on surety---Accused having been granted bail, applicant stood surety for him by executing surety bond---Accused having remained absent from the court, Trial Court forfeited surety bond---Surety did not show any carelessness in his effort to produce accused before the trial court and got accused apprehended and produced him before the concerned Police, but Police did not mention that fact in the Mashirnama of the arrest---Accused, ultimately stood acquitted from the charge vide judgment of the Trial Court---Amount of fine imposed on surety, was reduced from Rs.5,00,000 to Rs.2,50,000, in circumstances.

Faiz Muhammad M. Larik for Applicant/surety.

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

Date of hearing: 6th January, 2015.

2015 P Cr. L J 1448

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD ALI---Applicant

versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Application No.250 and M.A. No.3417 of 2014, decided on 11th November, 2014.

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

----Ss. 392 & 34---Criminal Procedure Code (V of 1898), S.561-A---Qanun-e-Shahadat (10 of 1984), Arts.37, 38 & 39---Robbery---Common intention---Freezing of bank account---Application for quashing of order---Applicant was not put to identification parade after his arrest before the concerned Magistrate to strengthen the case of prosecution, as eye-witness (security guard) was very much available in the complainant's office---Prosecution had failed to collect any evidence of details of the articles stolen from the lockers of the Bank by the applicant which were allegedly sold out and money was deposited in his account online through a bank from Peshawar to Karachi---Amounts were deposited in the account of the applicant, much earlier than the date of incident which had supported the contention of applicant that he was a businessman and was already maintaining the transaction of huge amounts through his said account to meet the deals of the business---Judicial Magistrate, while passing the impugned order, neither issued any notice to the applicant, nor passed a speaking order by mentioning valid reasons or justification to freeze the account of the applicant---Entire prosecution case was built on the alleged confession of applicant made before the Investigating Officer during the course of interrogation, which was not admissible under Art.39 of Qanun-e-Shahadat, 1984---Prosecution had failed to place any sound and direct evidence on record to establish that alleged transaction of amount from Peshawar to Karachi, was the sale price of the allegedly looted articles from the Lockers---Impugned order being void and illegal, was not sustainable in law, and was set aside---Manager of the bank was directed to allow applicant to operate his account as per rules, in circumstances.

2011 SCMR 1686 ref.

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

----Art. 39---Confession during police interrogation---Admissibility---Confession of accused, made before the Investigating Officer during course of interrogation, was not admissible.

Muharram G. Baloch for Applicant.

Syed Khurram Nizam for Intervener.

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

SIP Faiz, Investigating Officer, P.S. Soldier Bazar.

2015 P Cr. L J 1453

[Sindh]

Before Muhammad Ali Mazhar and Shaukat Ali Memon, JJ

ALI SHER---Applicant

versus

SPECIAL JUDGE ANTI-TERRORISM COURT SHAHEED BENAZIRABAD and another---Respondents

Criminal Revision Application No.D-56 of 2015, decided on 1st April, 2015.

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

----Ss. 6, 7 & 23---Act of terrorism---Application for transfer of case from Anti-Terrorism Court to ordinary court---Dismissal of application---For the purpose of deciding application moved under S.23 of Anti-Terrorism Act, 1997, court had to see the contents of the FIR, and material collected by Investigating Officer---Accused, in the present case, not only created hindrance and obstructions in the performance of duty by the Police, but also intimidated the public servants in order to refrain them from discharging their lawful duties and also created serious violence which was an act of terrorism, punishable under S.7 of Anti-Terrorism Act, 1997---Due to incident, concerned city was closed, general public was prevented from coming out and carrying on their lawful trade and daily business---Due to said act of terrorism, civil life was also disrupted and perturbed---Prosecution, keeping in view the facts and circumstances of the case, had rightly filed the charge-sheet of the case in Anti-Terrorism Court---Trial Court while dismissing the application filed under S.23 of Anti-Terrorism Act, 1997 did not commit any illegality or irregularity requiring interference.

PLD 2005 SC 530 and 2007 SCMR 142 distinguished.

Muhammad Ali's case 2007 SCMR 142; Nooruddin v. Nazeer Ahmad 2011 PCr.LJ 1370 and Nazeer Ahmed v. Nooruddin 2012 SCMR 517 ref.

Bhagwandas Bheel for Applicant.

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

Date of hearing: 1st April, 2015.

2015 P Cr. L J 1477

[Sindh]

Before Amer Raza Naqvi, J

RUSTAM ALI---Applicant

versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Application No.S-372 of 2014, decided on 12th February, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A, 6, 28 & 29---Inherent jurisdiction of High Court, exercise of---Ex-officio Justice of Peace, being not a "court" as defined under S.6, Cr.P.C., and having not been included in any class of courts or Magistrate, and having not been mentioned in Ss.28 & 29, Cr.P.C., orders passed by Ex-officio Justice of Peace, being not judicial orders, could not be challenged before High Court under S.561-A, Cr.P.C.---Court of Judicial Magistrate, was a "court" under S.6 of Cr.P.C. and performed judicial functions, orders passed by Judicial Magistrate on Police report, could be challenged before High Court under S.561-A, Cr.P.C., in case other requirements of law were fulfilled---Proceedings before Judicial Magistrate, were maintained under S.561-A, Cr.P.C.

PLD 2014 SC 753; PLD 2005 Lah. 470; 2011 MLD 766; 2006 SCMR 1920; 2014 MLD 1059 and 2005 PCr.LJ 357 ref.

Dareshani Ali Haider "Ada' for Applicants.

Rabait Ali Bhanbhro for proposed accused/Respondents.

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

Mukesh Kumar G. Karara, Amicus Curiae.

2015 P Cr. L J 1496

[Sindh]

Before Muhammad Ali Mazhar and Shaukat Ali Memon, JJ

MUHAMMAD AFZAL---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (SINDH) and 4 others---Respondents

C.P. No.D-4056 of 2014, decided on 6th February, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b) & 16(a)---Criminal Procedure Code (V of 1898), S. 497---Constitution of Pakistan, Art. 199--- Constitutional petition--- Bail, grant of--- Delay in conclusion of trial--- Case of further inquiry---Scope---Petitioner was arrested by National Accountability Bureau for committing offence of corruption and corrupt practices---Plea raised by petitioner was that case against him was one of further inquiry and there was delay in conclusion of trial---Validity---Further inquiry was a question which must have some nexus with the result of 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 could create doubt with respect to involvement of accused in crime---Deeper appreciation of evidence was not permissible at bail stage simultaneously it was also the object of trial to make the accused to face trial and not to punish an undertrial prisoner---Basic idea was to enable accused to answer criminal prosecution against him rather than to rot him behind the bars---Accused was entitled to expeditious access to justice, which included a right to fair and expeditious trial without any unreasonable and inordinate delay---Intention of law was that criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice was likely to cause erosion of public confidence in judicial system on one hand and on the other hand it was bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries--- Petitioner was arrested on 1-7-2014, while charge was framed in the month of October, 2014 and examination-in-chief of one witness had been recorded so far, which negated spirit of S.16 of National Accountability Ordinance, 1999---Bail was allowed, in circumstances.

Ali Anwar Ruk, Abdul Jabbar, Syed Manzoor Ali and Sardar Amin Farooqui's cases 2014 PCr.LJ 186, 2015 YLR 216; 2015 YLR 108; PLJ 2014 Kar. 268; Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645 and Muhammad Jahangir Badar v. NAB PLD 2003 SC 525 rel.

Muhammad Ishaque Ali for Petitioner.

Noor Muhammad Dayo ADPG for Respondents

Date of hearing: 26th January, 2015.

2015 P Cr. L J 1517

[Sindh]

Before Muhammad Ali Mazhar and Shaukat Ali Memon JJ

SHUMAIL SIKANDAR---Petitioner

versus

CHAIRMAN, NAB and 3 others---Respondents

C.P. No.D-3984 of 2014, decided on 9th March, 2015.

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

----Ss. 8, 10, 18 & 24(b)---Constitution of Pakistan, Art.199--- Corruption and corrupt practices---Reference to Accountability Court---Constitutional petition---Bail, refusal of---Contentions in the Reference were that 34 allottees of City Project, had filed complaints against accused/an authorized Director of Construction Company, for illegal allotment of flats and shops in the City Project; that despite lapse of 16 years, the project had not been completed, and possession of flats and shops were not given to the allottees; that after the death of his father, petitioner took over the project, and allotted and cancelled the flats and shops and executed lease deeds illegally after receiving payments/dues, in connivance with his partners and directors of the company and that petitioner had committed the offence of cheating public at large which was punishable under National Accountability Ordinance, 1999---Role of petitioner had been clearly defined in Reference---All complainants/witnesses had implicated the petitioner---Even in the investigation report, the excerpt from the statements recorded under S.161, Cr.P.C., was mentioned---Petitioner, had applied for plea bargain, but he concealed that fact in his petition---NAB, produced the application for plea bargain signed by the petitioner, showing his willingness to enter into a plea bargain---Contention of the petitioner was that three co-accused having been granted bail, he was also entitled to bail---Bail orders in favour of co-accused, were based on different premises; petitioner, could not be given any benefit of said bail orders, taking into consideration the incriminating material produced by the prosecution, including the application moved by the petitioner for plea bargain---In the Reference, the role of each accused was defined separately---Plea of bail, the rule of consistency, whether would apply, or not, needed not to be considered in the perspective of role of each individual---Petitioner, who had committed offence of cheating, his case did not seem within the parameters of expression "reasonable grounds" to believe that offence with which he was being charged, had not been committed by him---Petition seeking bail, was dismissed, in circumstances.

Muhammad Zafar Maniar v. Shehzad Ahmed and others 2011 MLD 602; Hassan Jameel Ansari v. NAB 2012 YLR 2809; Naseem Abdul Sattar v. Federation of Pakistan PLD 2013 Sindh 357 and Abdul Aziz Khan Niazi v. State PLD 2003 SC 668 ref.

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

----S. 497---Bail, grant of---Principle---Whenever, reasonable doubt would arise with regard to the participation of an accused in the crime, or about the truth or probability of the prosecution case, and the evidence proposed to be produced in support of the charge, accused should not be deprived of benefit of bail---In such a situation, it would be better to keep him on bail than in jail during the trial---Prosecution in order to make out a case for refusal of bail to an accused, was primarily supposed to place on record material, on the basis of which he was believed to be involved in a non-bailable offence, but in absence of such material, the court for the purpose of releasing accused on bail, instead of dilating upon the facts of the case in detail, could dispose of the matter by holding that his detention was unjustified or unreasonable, until such time when on further probe, either by Investigating Agency, or the court seized of the matter, some additional, incriminating material was collected against him to justify rejection of his bail.

PLD 1996 SC 241 and PLD 2002 SC 572 rel.

Yousuf Moulvi for Petitioner.

Noor Muhammad Dayo, ADPG NAB.

Hassan Noor, Assistant Director NAB/I.O.

Date of hearing: 18th February, 2015.

2015 P Cr. L J 1531

[Sindh]

Before Muhammad Ali Mazhar, J

RAB NAWAZ and 2 others---Applicants

versus

The STATE---Respondent

Criminal Bail Applications Nos.S-218 and S-219 of 2015, decided on 9th March, 2015.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.302, 311, 120-B, 114 & 34---Qatl-i-amd, Tazir after waiver or compounding of right of qisas in qatl-i-amd, criminal conspiracy, abetment, common intention---Interim pre-arrest bail, refusal of---One of the accused persons though was stated to be empty handed, but he could not be given benefit of bail as in both the scenes of crimes, committed on the same day, but at different time, said accused was present and the offence was stated to have been committed on his instigation and all accused persons in league, went to the scene of offence with common intention---If several persons, would unite with common purpose to do any offence, all those, who would assist in the completion of their object, would be equally guilty---Foundation of constructive liability, was the common intention in meeting accused to do the criminal act; and the doing of such act in furtherance of common intention to commit the offence---Delay in lodging the FIR, had reasonably been explained---Difference in bail before arrest, and after arrest was that in pre-arrest bail, elements of mala fide, false involvement, arrest with motive of humiliation, and malicious prosecution, would be present---When the condition of mala fide or other elements, were not satisfied, no case of bail was made out---Said elements and or ingredients were lacking in the present case---Purpose of pre-arrest bail, was to protect a person from disgrace, and to avoid humiliation---Concession of such bail could not be allowed when prima facie murder case against the accused was made out---Accused persons, had been nominated with specific roles i.e. causing firearm injury to both deceased persons---Accused persons, committed murder in presence of more than three eye-witnesses---Police had recorded the statements under S.161, Cr.P.C., and all witnesses had clearly implicated accused persons in the offence, in question---Bail before arrest, could not be granted, unless the person seeking it would satisfy the conditions specified through subsection (2) of S.497, Cr.P.C.---Said person, had to establish the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him; and that there were sufficient grounds warranting further inquiry into the guilt, which accused persons had failed to satisfy in the case---Two persons had lost their lives on the pretext of honour killing, which had become a menace and invariable threat to the society and needed to be discouraged vigorously on the rampage---Bail applications, were dismissed, in circumstances.

Muhammad Arshad v. Muhammad Rfique PLD 2009 SC 427 ref.

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

----S. 34---Criminal Procedure Code (V of 1898), S.497---Common intention---Principle of vicarious liability---Applicability---Bail---To constitute an offence under S.34, P.P.C., it was not required that a person, should necessarily perform any act with his own hands---If several persons had the common intention of doing a particular criminal act, and if in furtherance of their common intention, all of them were jointly together, and aided or abetted each other in the commission of an act then one, out of three, could not actually with his own hands, do the act, but if he would help by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.---Principle of vicarious liability could be looked into even at bail stage, if from the FIR, accused appeared to have acted in pre-concert or shared to community of intention with his co-accused, who caused fatal injury to deceased, then he could also be saddled by constructive or vicarious liability.

Mulo Ahmed v. State 2011 MLD 1171 ref.

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

----S. 345---Penal Code (XLV of 1860), Chap.XVI [Ss.299 to 338-H)---Compounding of offence---Offence of 'Karo Kari', 'Siyah Kari'---Under S.345, Cr.P.C., though the offences punishable under P.P.C., specified in the first two columns in the table under S.345, Cr.P.C., could be compounded by the persons mentioned in the third column of that table, but sub-section (2-A) of S.345, Cr.P.C., look forward to a situation, where an offence under Chapter XVI of P.P.C., had been committed in the name or on the pretext of 'Karo Kari', 'Siyah Kari' or similar other customs; or practices, such offence, could be waived or compounded to such conditions as the court could deem fit to impose with the consent of the parties, having regard to the facts and circumstances of the case---Legal heirs of both the deceased, though had agreed to compromise the offence, but in view of subsection (2-A) of S.345, Cr.P.C., it was for the court to decide, whether the offence, could be waived or compounded; and what conditions, were required to be imposed having regard to the facts and circumstances of the case.

Kashif Hussain Agha for Applicants.

Muhammad Hussain Complainant in Crime No.35 of 2014 (in Cr.BA. No.S-218 of 2015).

Sahib Khan Halepoto, HC, Complainant on behealf of State in Crime No.38 of 2014 (in Cr.BA No.S-219 of 2015).

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

Date of hearing: 9th March, 2015.

2015 P Cr. L J 1561

[Sindh]

Before Sadiq Hussain Bhatti and Abdul Maalik Gaddi, JJ

KHANZADO alias KETOO SABZOI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.D-83 of 2012, decided on 25th November, 2014.

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

----Ss. 21-L, 10 & 11---Constitution of Pakistan, Arts.9 & 10---Abscondence---Conviction and sentence for---Appreciation of evidence---All accused persons, including accused, who were charged under S.365-A, P.P.C., and Ss.6 & 7 of Anti-Terrorism Act, 1997, were acquitted, but accused, who absconded and proceedings under Ss.87 & 88, Cr.P.C. were initiated against him, was convicted and sentenced under S.21-L of Anti-Terrorism Act, 1997, on account of his abscondence---No evidence was recorded to prove the ingredients of S.21-L of Anti-Terrorism Act, 1997---No point for determination, concerning the said offence, was framed by the Trial Court---No discussion with regard to evidence on record was found in the impugned judgment of the Trial Court---Trial Court in cursory manner, convicted and sentenced accused for said offence---Procedure adopted by the Trial Court in convicting and sentencing accused was not warranted by law---Trial of accused in absentia, undertaken by Trial Court was violative of Arts.9 & 10 of the Constitution, and Ss.10 & 11-C of Anti-Terrorism Act, 1997---Despite no charge under S.21-L of Anti-Terrorism Act, 1997 had been framed against accused, accused was convicted in his absentia---Accused was, therefore, condemned unheard, which was contrary to the principles of natural justice---Accused having been acquitted in main offence along with other accused persons on same evidence, no useful purpose would be served by remanding the case to Trial Court for retrial---Conviction and sentence awarded by the Trial Court against accused, were set aside, and he was acquitted, and ordered to be released, in circumstances.

Ali Hassan v. The State 2009 MLD 1198 and Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 ref.

Rafiq Ahmed K. Abro for Appellant.

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

Date of hearing: 25th November, 2014.

2015 P Cr. L J 1569

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Iqbal Kalhoro, JJ

NOOR MUHAMMAD and others---Petitioners

versus

The STATE through NATIONAL ACCOUNTABILITY BUREAU (NAB), SINDH and others---Respondents

Constitutional Petitions Nos.D-3526, D-3538, D-3818, D-3965, D-4310, D-4377, D-3250 of 2014, decided on 28th April, 2015.

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

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Prima facie case---Embezzlement of G.P. Fund---Petitioners were accused of embezzling/misappropriating G.P. Fund by preparing bogus bills to the tune of Rs.46.949 million---Grant of bail in cases involving corruption on the part of public functionaries had to be considered narrowly particularly so when there was prima facie evidence connecting them with alleged offence---Investigating Officer not only collected necessary documents connecting the petitioners with commission of offence but he also fixed responsibility/liability individually and separately on each petitioner by showing independent amount allegedly embezzled by each one of them---Bank record, cheque leaves, invoices, statement of accounts showing withdrawal of money from accounts operated by petitioners were also part of prosecution case, which could not be ignored summarily on any hypothetical ground urged by petitioners, where prima facie appeared to be beneficiaries of alleged embezzlement---High Court declined to grant bail to petitioners---Petition was dismissed, in circumstances.

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

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Case of further inquiry---Embezzlement of G.P. Fund---Plea bargaining by co-accused---Petitioner was accused of embezzling G.P. Fund by a cheque amounting to Rs.1.559 million---One friend of petitioner admitted to have received subject cheque from petitioner and used it for encashment of said amount with the connivance of petitioner---Friend of petitioner submitted plea bargaining application to return 50% of entire embezzled amount which was duly presented before Trial Court, where application of plea bargaining was withdrawn during the arguments by prosecutor---Application of plea bargaining was part of record and suggested further enquiry into the guilt of petitioner---High Court allowed bail to petitioner (co-accused)---Petition was allowed, in circumstances.

Mansoor Ali Ghangro for Petitioners (in C.P.No.D-3538 and 4310 of 2014).

Imdad Ali M. Ujjan for Petitioners (in C.P.No.D-3965 and 3526 of 2014).

Usman Tufail Shaikh for Petitioner (in C.P.No.D-4377 of 2014)

Qazi Abdul Hameed Siddiqui for Petitioner (in C.P. No.3818 of 2014)

Umair Bachani for Petitioner (in C.P.No.D-3250 of 2014).

Noor Muhammad Dayo, ADPG NAB along with Naveed Raheem I.O. NAB and M. Akhtar Khan, Ex.I.O. NAB.

Ali Gohar Sheikh, Manager NBP Main Branch Shikarpur and Riaz Ahmed Pechuho, Manager, NBP Hatidar Branch Shikarpur.

Date of hearing: 16th April, 2015.

2015 P Cr. L J 1724

[Sindh]

Before Zafar Ahmed Rajput, J

SHAH NAWAZ---Appellant

versus

MUHKAMUDDIN and 7 others---Respondents

Criminal Acquittal Appeal No.S-106 of 2013, decided on 15th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 337-A(i), 337-F(ii), 337-L(2) & 427---Criminal Procedure Code (V of 1898), S.417(2-A)---Causing Shajjah-i-Khafifah, Badiah, hurt, mischief of causing damage---Appeal against acquittal---Reappraisal of evidence---Grave enmity existed between the prosecution witness and accused---Evidence of prosecution witnesses against accused, in circumstances, was not safe, reliable and free from doubt---Alleged incident, had taken place in the shop of complainant situated in main market in day time in between 1-00 to 2-00, p.m., but no independent witness was associated and examined by the complainant---Case, in circumstances, was highly doubtful---Complainant party might have filed present direct complaint, just to pressurize accused persons in order to bring them on their terms for their withdrawal from murder trial of their father, which was being faced by prosecution witness, and brother-in-law of complainant could not be ruled out---Trial Court, acquitted accused of the charge holding that the prosecution had failed to bring home guilt of accused, beyond reasonable doubt---Reasons recorded by the Trial Court for its judgment of acquittal, were based on evidence on record, and conclusion drawn by Trial Court as to the innocence of accused was appropriate---For basing conviction against accused there should be strong evidence before the Trial Court and if the doubt, even slightest, would arise in the prudent mind as to the guilt of accused, benefit of the same had to be extended in favour of accused---Credence was accorded to the findings of the courts below, whereby, accused had been exonerated from the charge of commission of the offence---For reversal of an order of acquittal, it must be shown that acquittal was unreasonable, perverse and manifestly wrong---Order of acquittal passed by the Trial Court, which was based on correct appreciation of evidence would not warrant interference in appeal---Extraordinary remedy of an appeal against an acquittal, was different from an appeal against judgment of conviction and sentence, because presumption of double innocence of accused was attached to the order of acquittal---Impugned acquittal order, which did not suffer from any illegality or infirmity and misreading or non-reading of evidence leading to miscarriage of justice was not open for interference by High Court under S.417, Cr.P.C.---Appeal against acquittal was dismissed, in circumstances.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 ref.

Appellant in person.

Respondents in person.

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

Date of hearing: 24th November, 2014.

2015 P Cr. L J 1732

[Sindh]

Before Ahmed Ali M. Sheikh and Abdul Maalik Gaddi, JJ

ABID SAEED through son/Attorney---Petitioner

versus

DIRECTOR-GENERAL, NATIONAL ACCOUNTABILITY BUREAU (SINDH)---Respondent

Constitutional Petition No.DB-1555 of 2015, decided on 13th May, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Availability of remedy in procedural statute normally ousts jurisdiction of High Court.

Shoukat Khan v. Assistant Political Agent, Landhi Kotal, Khyber Agency and others PLD 2002 SC 526; Chief Administrator of Aukaf v. Muhammad Ramzan PLD 1991 SC 102 and Messrs A.H. Pesticides (Pvt.) Ltd. and another v. Federation of Pakistan and others PLD 2004 Kar. 620 rel.

(b) Criminal trial---

----Abscondence---Rights of fugitive from law---Effect---Fugitive from law and Courts loses some normal rights to which a normal person was entitled under procedural or substantive law.

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

----S. 9(a)(xi)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Criminal breach of trust as banker---Prima facie case---Fugitive from law---Petitioner remained absconder in accountability reference alleged to have committed criminal breach of trust and causing loss to government exchequer---Validity---Petitioner was assigned pivotal role in commission of crime and had been recently arrested in the reference which was pending against him in trial Court, where three prosecution witnesses implicated him---Prima facie, prosecution had shown involvement of petitioner in commission of crime causing huge financial loss to national exchequer---Petitioner failed to make out a case for his release on bail---Petition was dismissed in circumstances.

Shoukat Khan v. Assistant Political Agent, Landhi Kotal, Khyber Agency and others PLD 2002 SC 526; Chief Administrator of Aukaf v. Muhammad Ramzan PLD 1991 SC 102; Messrs A.H. Pesticides (Pvt.) and another v. Federation of Pakistan and others PLD 2004 Kar. 620;Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Manzar Qayyum v. The State and others PLD 2006 SC 343; Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195 and Ghulam Haider Jamro and another v. Chairman, NAB 2007 YLR 541 ref.

Pervaiz Iqbal Butt for Petitioner.

Noor Muhammad Dayo, ADPG NAB along with Obaidullah Abro, Senior Prosecutor NAB.

Date of hearing: 13th May, 2015.

2015 P Cr. L J 1762

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

RUSTAM ALI PITAFI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-104 of 2013, decided on 19th February, 2015.

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

----S. 510---Report of Chemical Examiner, admissibility of---Non-production of report of Chemical Examiner---Effect---Section 510, Cr.P.C., entailed that the report of Chemical Examiner, was admissible without calling the author of said report as witness---Section 510 provided that the court, could, if it considered necessary in the interest of justice, summon, and examine the person, who prepared the report---Wisdom behind S.510, Cr.P.C., was to attach some sanctity to the Chemical Examiners' report, and not to call him in each and every case unless it was necessitated in the interest of justice.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.510---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Non-production of report of Chemical Examiner---No report of Chemical Examiner, either in its original form or a copy thereof had been produced---Trial Court, in circumstances, could have examined the Chemical Examiner, who could have brought his own record, if any, but the Court did not consider it necessary---No Chemical Examiner's report having been produced in the case, prosecution had been unable to establish its case under S.9(c) of Control of Narcotic Substances Act, 1997---Entire prosecution case, hinged on the fact that, whether the recovered substance, was narcotic or not, and that could be conclusively established, only by way of submitting the recovered substance to a scientific process, which was to be undertaken by a certified Chemical Examiner---Recovered substance from accused in circumstances, could not be said to be narcotic as no conclusive report was available on record---Mere suspicion, however, strong could not take the place of conclusive proof---Impugned judgment passed by Special Court, whereby accused was convicted, was set aside, by extending benefit of doubt to the accused and was acquitted.

Abdul Baqi Jan Kaker for Appellant.

Ubedullah Malano, S.P.P. for the State.

Date of hearing: 29th January, 2015.

2015 P Cr. L J 1772

[Sindh]

Before Muhammad Ali Mazhar and Muhammad Iqbal Kalhoro, JJ

JAWAD GHAFFAR through Father---Petitioner

Versus

The STATE through Director and another---Respondents

Constitutional Petition No.D-3273 of 2015, decided on 15th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969)---Imports and Exports (Control) Act (XXXIX of 1950), Preamble---Income Tax Ordinance (XLIX of 2001), Preamble---Sales Tax Act (VII of 1990), Preamble---Constitution of Pakistan,Art.199---Constitutional petition---Bail, refusal of---Prima facie incriminating evidence, existence of---Determination---Accused was alleged to have been involved in import of liquor on the pretext of declared goods, and was sent for trial after investigation---Both trial Court and appellate court dismissed bail applications of accused---Accused filed constitutional petition against registration of the FIR, which was later converted into bail application on request of accused---Contention raised by accused was that his name was not mentioned in FIR, and that no prima facie incriminating evidence could be collected during investigation---Respondents took plea that accused had been arrested after he was nominated in interim challan on statement of witness recorded under S.161, Cr.P.C.---During investigation, phone data record of accused and documents showing his visit to city of crime coinciding with timing of illegal consignments of liquor had been secured---Phone data showed that accused was in constant contact with co-accused---Documents showed stay of accused at hotels with co-accused---Bank statements showed numerous transactions of huge amounts between accused persons---Sufficient documentary evidence showed prima facie accused's nexus with commission of offences and his league with nominated co-accused---Prima facie, evidence strengthened presumption that accused was accessory to crime---During investigation, huge amount of liquor was recovered at pointation of co-accused---Prosecution witness, stating under S.161, Cr.P.C. had specifically implicated accused for his being source behind arranging transportation of consignments which contained liquor---Bail could not be granted to accused on any hypothetical ground, case was not that of further inquiry---Accused had to show that there was no prima facie evidence connecting him with commission of offence---Prosecution had material against accused which was sufficient to disentitle him for his release on bail---Absence of name of accused in FIR was no ground for extending concession of bail to him against whom sufficient incriminating material had been found during investigation---Bail application was dismissed accordingly.

Munir Ahmed Dogar v.The State PLD 2004 SC 822 rel.

Sohail Muzafar for Applicant.

Azizullah Buriro, DAG and Kashif Nazeer State Counsel along with I.O. Farhatullah Jafri, for the State.

Date of hearing: 15th July, 2015.

2015 P Cr. L J 1795

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs QADIR FABRICS through Managing Partner---Petitioner

Versus

The FEDERATION OF PAKISTAN through Secretary Revenue Division/Chairman Federal Board of Revenue and 3 others---Respondents

Constitutional Petitions Nos. D-5270 and 5272 of 2013, decided on 6th February, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss. 2(37) & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Sales tax fraud---Grant of bail---Depositing of post-dated cheques in court---Petitioners were alleged to be involved in a sales tax fraud, and were accordingly challaned in the Court of Special Judge Customs & Taxation---Petitioners applied for post-arrest bail by submitting post-dated cheques before the court---Contention of petitioners that cheques were obtained forcibly by the tax authorities with the help of the court; that recovery of (sales) tax could not be made in such manner, in absence of mandatory notice for payment or adjudged short payment under the mandate of S. 11 of the Sales Tax Act, 1990---Validity---Perusal of Annexures, through which the cheques were submitted before the court for obtaining post-arrest bail, showed that the cheques were apparently submitted voluntarily as no objection or reservation with regard to them being furnished without prejudice, had been endorsed or mentioned on the said annexures of the petitioners---Since bail had been obtained by the petitioners after furnishing post-dated cheques on their own, the objection being raised through present Constitutional petition appeared to be misconceived and was without any justification---Petitioners had not sought any declaration regarding legality or otherwise of the bail granting order, wherein, the petitioners deposited the cheques in favour of tax authorities---Moreover, the dispute regarding liability of the petitioners towards sales tax etc. was to be determined and decided by the forums provided under the relevant statute, where all such objections may be raised, which may be decided on their own merits---Constitutional petition was dismissed accordingly.

Muhammad Afzal Awan for Petitioner.

Abdul Aziz Buriro Standing Counsel for Respondents.

Date of hearing: 6th February, 2015.

2015 P Cr. L J 26

[Lahore]

Before Abdus Sattar Asghar, J

MEHDI KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.536 of 2012, decided on 19th June, 2014.

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

----Art. 132---Cross-examination---Purpose---Cross-examination is to test credibility of a witness and to bring true facts on the record which witness has either not brought on record or has deliberately concealed.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Arts.132 & 140---Qatl-i-amd---Cross-examination---Previous statement, confronted with---Trial Court did not allow accused to confront complainant during cross-examination with his previous statement---Validity---Defence side was not obligated to restrict its cross-examination only to the extent of facts stated by witness in his examination-in-chief rather it had a right to ask any question from witness to impeach his credibility as well as to bring true and relevant facts on record which witness had either not brought on record or had deliberately concealed---Evidentiary value of any such statement of witness was to be determined by Court at the time of final judgment---Accused could not be denied to confront complainant with his previous statement---Trial Court fell in error while refusing petitioner to confront complainant with his previous statement through the order of Trial Court which was untenable and liable to set aside---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court---Revision was allowed in circumstances.

Sher Muhammad and 2 others v. The State PLD 1995 SC 578 distinguished.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Ch. Farooq Haider for Petitioner.

Muhammad Nawaz Shahid DDPP with Muhammad Riaz, S.-I. for the State.

Raja Muhammad Hanif for Respondent No.3.

Date of hearing: 5th June, 2014.

2015 P Cr. L J 58

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 43 of 2014, heard on 2nd April, 2014.

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

----S. 540-A---Exemption to an accused from personal appearance---Conditions to be fulfilled for grant of exemption to an accused enumerated.

Following are the conditions that should be fulfilled to claim and grant exemption to an accused from personal appearance during trial:--

(i) There should be two or more accused before the court;

(ii) The accused seeking exemption should be before the court;

(iii) The accused should be incapable of remaining before the court;

(iv) The accused should be represented by a pleader;

(v) The Court should be satisfied about the incapability of the accused to remain before it.

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

----Ss. 205 & 540-A---Exemption to an accused from personal appearance---Grounds and conditions---Accused earning his livelihood abroad---Accused faced trial along with the co-accused and sought dispensation from personal appearance on the grounds that he was working and earning his livelihood abroad, for which purpose he had obtained a visa after incurring heavy expenditure; that during investigation he had been declared innocent, but appeared and joined the trial on summoning of the court, and that in his place an advocate would appear in the court on each and every date of hearing and join the proceedings---Validity---Incapability to appear before the Trial Court, as pleaded by the accused could be termed a fit (ground) for exemption--- Accused fulfilled all the conditions that were required to be fulfilled to claim and grant exemption to an accused from personal appearance during trial---After grant of dispensation by the Trial Court, no hurdle had occurred in the trial due to non-availability of accused--- Revision petition against dispensation allowed to accused was dismissed in circumstances with the direction that if at any stage of trial, Trial Court felt any hurdle due to non-availability of accused or his advocate, then it should not hesitate in withdrawing the concession and requiring personal appearance of accused.

Haji Aurangzeb v. Mushtaq Ahmad and another PLD 2004 SC 160 rel.

Usman Sharif Khosa for Petitioner.

Mian Abdul Qayyum, Additional Prosecutor-General for the State.

Malik Muhammad Saleem for Respondent No.2.

Date of hearing: 2nd April, 2014.

2015 P Cr. L J 73

[Lahore]

Before Ali Baqar Najafi and Ch. Mushtaq Ahmad, JJ

MUHAMMAD SAEED AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Law, Islamabad Secretariat and 5 others---Respondents

Writ Petition No. 2494 of 2014, decided on 11th November, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 4(l), 173, 200 & 204---Constitution of Pakistan, Art. 199---Constitutional petition---Investigation---Object, scope and purpose---Finding of guilt---Jurisdiction of Investigating Officer---Scope---Petitioner was complainant of F.I.R. in question and was not satisfied with investigation report submitted by Investigating Officer for the reason that some nominated accused were made prosecution witnesses---Plea raised by accused was that Trial Court had started recording evidence and such application of complainant was dismissed by Trial Court---Validity---Investigating agency had no authority to give finding of guilt or innocence regarding accused persons under the provisions of Criminal Procedure Code, 1898, or Police Act, 1861, Police Order, 2002 and Rules framed thereunder---Prerogative of the Court to give finding after recording of evidence and statement of accused regarding guilt or innocence and such finding of police tantamount to debar powers of Court of law---Purpose of investigating agency was to collect evidence and not to hold any person guilty or otherwise---By converting some accused as witnesses, investigating officer did not transgress his authority---Evidence collected during investigation would be properly weighed and scrutinized by Trial Court--- Complainant, if not satisfied with investigation, could file private complaint---Petition was dismissed in circumstances.

Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

Syed Muhammad Zahoor for Petitioner.

Raja Tanvir Akhtar, Standing Counsel.

Qazi Misbah ul Hassan for Respondent No.6.

Sheikh Alamdar Hussain Shah, Inspector, FIA with record.

2015 P Cr. L J 87

[Lahore]

Before Shoaib Saeed, J

MUHAMMAD MASOOD KHAN---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, BUREWALA DISTRICT VEHARI and 2 others---Respondents

Writ Petition No. 10394 of 2013, decided on 1st October, 2013.

Penal Code (XLV of 1860)---

----S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 7, 9 & 20---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque, and default in fulfilment of obligation---Jurisdiction of Banking Court---Scope---Petitioner instituted a suit for declaration and rendition of accounts along with permanent injunction against the respondent/bank in Banking Court---Court passed injunctive order in favour of petitioner, wherein respondent/bank was restrained to adopt any illegal coercive measures for recovery of loan against the petitioner---Bank which did not put in appearance, moved an application before Justice of Peace for registration of criminal case against the petitioner---Cheque in question issued by the petitioner in favour of the bank, was dishonoured on presentation due to insufficient amount---Justice of Peace vide impugned order, ordered registration of criminal case against the petitioner---Contention of the petitioner was that he being a "customer" and bank being 'Financial Institution', bank could adopt recourse to the procedure under Financial Institutions (Recovery of Finances) Ordinance, 2001 for recovery of its defaulted loans by filing proceedings against the delinquent defaulters with the Banking Court having exclusive jurisdiction to adjudicate and decide such matter---Validity---By obtaining impugned order from Justice of Peace, ultimate object of bank was for initiation of proceedings under S.489-F, P.P.C. as cheque issued by the petitioner in favour of the bank was dishonoured---Object of the Financial Institutions (Recovery of Finances) Ordinance, 2001, and to initiate proceedings under P.P.C., were entirely different, as both the enactments, could not be amalgamated or confused with each other---Civil liability existed between the parties and diverting the same into criminal offence where a complete recourse for recovery of such liability was provided under Financial Institutions (Recovery of Finances) Ordinance, 2001, seemed to be with mala fide intention and ulterior motive---Section 20(4) of said Ordinance, provided the remedy wherein cheque dishonestly issued and dishonoured because of insufficient funds, would be governed by said section of law, bank could file a direct complaint in the Banking Court---Bank could avail remedies available under said Ordinance for recovery of its debt, as well as for dishonoured cheque---Proceeding further on the basis of impugned order would be abuse of process of the court and without lawful authority---Order accordingly.

Gul Muhammad and others v. The State 1999 SCMR 2765; MADAWA through President v. Inspector-General of Police, Punjab and 15 others PLD 2013 Lah. 442; Sabir Ahmad v. Nazeer Ahmed and another 2010 PCr.LJ 412; Mian Farid and another v. Industrial Development Bank of Pakistan and 4 others 2005 PCr.LJ 766; Sheikh Mureed Hussain v. S.H.O. Police Station Kohsar, Islamabad and 2 others 2005 PCr.LJ 144 and Muhammad Mazhar Iqbal v. The State and another 2011 CLD 704 ref.

Ghulam Murtaza Malik for Petitioner.

Ch. Muhammad Siddique Dewal for Respondent.

Mubashar Latif Gill, A.A.-G. with Anwar, A.S.-I.

2015 P Cr. L J 98

[Lahore]

Before Mazhar Iqbal Sidhu and Arshad Mahmood Tabassum, JJ

HAZRAT ALI alias GHANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 69 of 2009 and Murder Reference No.45 of 2009, heard on 17th April, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Trial Court, for valid reasons had disbelieved the eye-witnesses and motive of the occurrence as set up by the prosecution, but despite all that, the Trial Court convicted and sentenced accused on the statement of defence witness---Defence witness who had been relied upon by the Trial Court to convict accused, was a witness who himself stated that he did not see the occurrence---Defence witness had not stated that he had seen accused inflicting chhuri blows to the deceased---Accused could not be convicted on the basis of such witness especially when the entire prosecution evidence, had been disbelieved by the Trial Court---Judgment of the Trial Court was self contradictory; and suffered from misreading and non-reading of evidence available on record---Accused, as alleged, had nowhere claimed that due to being a man of unsound mind he had caused sharp edged weapon injuries to the deceased---Conviction and sentence passed against accused being violative of law, could not sustain; which was set aside, in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Sardar Zafar Ahmad Khan Lund for Appellant.

M. Saeed Ahmad Mumtaz, Additional Prosecutor-General for the State.

Mushtaq Ahmad Tanveer for the Complainant.

Date of hearing: 24th April, 2014.

2015 P Cr. L J 111

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

MUHAMMAD AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.261-J and Murder Reference No. 289 of 2008, heard on 20th May, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Occurrence took place under the sunlight--- Accused was nominated in the F.I.R. along with weapon with specific role, that he made fire shot with his rifle .44 bore, hitting deceased on his back when he was running which went through and through--- Doctor endorsed that the deceased died of fire shot injuries--- Presence of the eye-witnesses had been found uprooted on account of unbridgeable medical contradiction with the ocular account with regard to distance at which deceased received solitary fire shot injury---Site plan showed that deceased received fire shot injury from the distance of 80-Karams---Statement of eye-witnesses revealed that deceased was fired at from a distance of one Vega, whereas the Doctor had observed margins of inlet wound burnt---Such inconsistency could not be resolved in favour of the prosecution; and that fact alone was sufficient to extend benefit to accused---Impugned judgment of conviction and sentence was set aside and accused was acquitted of the charge against him and was released.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Muhammad Aslam Khan v. The State 1999 SCMR 172; Wahid v. The State PLD 2002 SC 62; Muhammad Tufail v. The State PLD 2002 SC 786 and Abdul Subhan v. Raheem Bakhsh PLD 1994 SC 178 ref.

Muhammad Ishaque v. The State 2007 SCMR 108 rel.

Ch. Ghulam Murtaza Khan, Sher Afgan Asadi and Babar Murtaza Khan for Appellant.

Malik Qamar Masood Khokhar for the Complainant.

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

Date of hearing: 20th May, 2013.

2015 P Cr. L J 150

[Lahore]

Before Muhammad Yawar Ali and Miss Aalia Neelum, JJ

Mst. SADIA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1 of 2013 in Criminal Appeal No. 873 of 2013, decided on 30th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Recovery of narcotics---Sentence, suspending of---Accused was found in possession of Charas weighing 4 kilogram which was wraped in three packets and in a sack Garda Charas was also recovered---Accused was apprehended at the spot red handed and prosecution witnesses fully supported version of prosecution---Effect---Recovery of Charas at the spot was fully proved and Chemical Examiner Report was also positive---High Court did not find it appropriate to have deeper appreciation at such stage---Accused was convicted under S. 9(c) of Control of Narcotic Substances Act, 1997, after regular trial and Trial Court came to the conclusion that prosecution had proved its case beyond reasonable doubt---High Court declined to suspend the sentence awarded to accused by Trial Court--- Petition was dismissed in circumstances.

The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299 rel.

Hammad Akbar Wallana for Petitioner

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

2015 P Cr. L J 153

[Lahore]

Before Shahid Hameed Dar, J

TAHIR MEHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6507-B of 2013, decided on 9th July, 2013.

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

----S. 497(1), fifth proviso---Penal Code (XLV of 1860), Ss. 302, 392, 394 & 411---Qatl-i-amd, robbery, voluntarily causing hurt in committing robbery, dishonestly receiving stolen property---Bail, refusal of---Delay in conclusion of trial occasioned by adjournments sought by defence side---Effect---Bail was moved by accused on ground of statutory delay in conclusion of his trial, however accused and his co-accused had shown delinquency at trial and sought adjournments one after the other---On seventeen (17) occasions adjournments were sought when prosecution witnesses were in attendance for their examination by Trial Court---Adjournments earned by defence side in a particular situation, may cause wastage of dozen ensuing dates of hearing, which prolonged proceedings of the trial---Accused had been implicated by the complainant and witnesses for not only forcibly snatching mobile phones but also killing one person in the process---Such an offence made the accused a desperate or hardened character, bringing his case within the exception clause of S. 497(1), fifth proviso, Cr.P.C.---Bail application of accused was dismissed in circumstances with a direction to Trial Court to conclude trial within six months.

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

----S. 497(1), fifth proviso---Bail---Delay in conclusion of trial, computation of---Adjournments sought by prosecution and defence side---Law did not require that adjournments sought by defence may be compared with adjournments obtained by the other side, so as to draw a mathematical equation as to who outnumbered whom, nor digits could be juggled with for said purpose.

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

----Ss. 497(1), fifth proviso & 154---Bail sought on ground of statutory delay in conclusion of trial---Desperate and hardened nature of accused, determination of---Story of F.I.R. could be validly gone into while adjudicating a bail application under S. 497(1), fifth proviso, Cr.P.C. to formulate an opinion as to whether or not, mode of occurrence hinted at desperate/hardened character or disposition of the accused.

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

----S. 497(1), fifth proviso---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Bail sought on ground of statutory delay in conclusion of trial---Desperate and hardened nature of accused, determination of---Accused committing offence of dacoity-cum-murder could definitely be held to be of a desperate or hardened character, which would bring his case within the mischief of exception clause to S. 497(1), fifth proviso, Cr.P.C.---Illustration.

Mian Pervaiz Hussain for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab for the State.

Ch. Walayat Ali for the Complainant.

Muhammad Nawaz, A.S.-I. with record.

2015 P Cr. L J 166

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MAJID KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.238 of 2012, heard on 27th February, 2013.

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

---Ss. 7 & 2(b)---Determination of age---Ossification test---Accused moved an application seeking declaration to be a juvenile at the time of commission of crime which was dismissed by the Trial Court after an inquiry and ossification test conducted by the Medical Board---Contention of the accused was that he was less than the age of eighteen years at the time of commission of crime---Validity---Accused applied for a declaration of his being a juvenile and he himself suggested the ossification test through a Medical Board and the same had been termed by him as a mandatory step within the meaning of S. 7 of the Juvenile Justice System Ordinance, 2000---Medical Board declared the accused as 22-23 years of age which had not been challenged by him and he had never demanded re-examination by creating doubts on opinion of Medical Board---Accused was not a child when occurrence took place within the meaning of S. 2(b) of the Juvenile Justice System Ordinance, 2000 and findings of the Trial Court were justified and did not call for any interference---Revision was dismissed.

Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073 and Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 rel.

Malik Waheed Anjum for Petitioner.

Muhammad Usman Mirza, Deputy Prosecutor-General Punjab for the State.

Date of hearing: 27th February, 2013.

2015 P Cr. L J 175

[Lahore]

Before Ijaz Ahmad and Shezada Mazhar, JJ

MUHAMMAD RAFIQUE KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.452-E of 2012, decided on 13th November, 2013.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a), Sched. Serial Nos. 11 & 12---Penal Code (XLV of 1860), Ss.468 & 471---Corruption and corrupt practice, forgery for the purpose of cheating and using as genuine a forged document---Appreciation of evidence---Non-holder of public office---Accused was alleged to have received two claims from United Nations Compensation Commission against forged document---Trial Court convicted and sentenced the accused for five years imprisonment and fine---Plea raised by accused was that National Accountability Bureau had no jurisdiction to proceed against him---Validity---Very wide powers had been granted to NAB authorities and such power was not restricted to holder of public office only or related to public money only---Provisions of National Accountability Ordinance, 1999, were equally applicable to a person who was involved in corruption or corrupt practices---In the present case, it had been proved by prosecution that one passport used by accused was issued to some other person and its one letter and one figure were forged---Accused admitted to have received both the claims but failed to explain as to why two claims on the basis of two different sets of documents---Documents/evidence available on record proved both essential elements of an offence i.e. mens rea and actus reus---Such ingredients were necessary or pre-requisite for punishment in case of cheating and fraud--- Accused had produced forged documents in order to induce someone to accept them as genuine and on the basis of such documents that someone had suffered some damage---High Court maintained the conviction and sentence in presence of essential ingredients of fraud and cheating read with admission made by accused---Appeal was dismissed in circumstances.

Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594 rel.

Sardar Asmat Ullah Khan for Appellant.

Barrister Saeed ur Rehman, ADPG for NAB.

Dates of hearing: 30th and 31st October, 2013.

2015 P Cr. L J 189

[Lahore]

Before Ijaz Ahmad, J

FAZAL-E-HAQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.333 of 2013, heard on 7th February, 2014.

Police Order (22 of 2002)---

----Art. 155-C---Criminal Procedure Code (V of 1898), S. 237---Pakistan Criminal Law Amendment Act (XL of 1958), S. 6(4)---Illegally continuing with investigation---Appreciation of evidence---Offence not mentioned in charge-sheet---Accused was police official who was convicted by Special Judge Anti-Corruption under Art. 155-C of Police Order, 2002 and sentenced to three years of imprisonment---Plea raised by accused was that he could not be convicted under the offence which was not alleged to have been committed and he was not made aware of the same---Validity---Accused knew nature of accusation that he was illegally continuing with investigation even after suspension from service---Accused could be convicted and sentenced in an offence under another section of Penal Code, 1860, as S. 6(4) of Pakistan Criminal Law Amendment Act, 1958, had postulated---Special Judge Anti-Corruption could convict accused of any offence which from facts admitted or proved appeared to have been committed---Similar intent had been conveyed by Legislature through provisions of Ss. 237 & 535, Cr.P.C.---Special Judge Anti-Corruption did not act beyond his jurisdiction and conviction passed by him did not suffer from any illegality or irregularity---Appeal dismissed in circumstances.

Mushtaq Hussain and another v. The State 2011 SCMR 45; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Dawa Khan through L.Rs. and others v. Muhammad Tayyab 2013 SCMR 1113; Rabia Akhtar and another v. Muhammad Ayub and 2 others 2013 MLD 16; Anwar Ahmad v. Mst. Nafis Bani through Legal Heirs 2005 SCMR 152; Muhammad Asghar v. State PLD 2008 SC 513 and DPO Chiniot and others v. Muhammad Ayub 2013 SCMR 395 ref.

Syed Ali Shah Bokhari for Appellant.

Ghufran Khurshed Imtiazi with Ch. Qaisar Mushtaq, ADPP for the Complainant.

Date of hearing: 7th February, 2014.

2015 P Cr. L J 197

[Lahore]

Before Ch. Muhammad Younis, J

GHULAM HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.75 of 2011, heard on 25th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 365-B & 496-A---Kidnapping, abducting or inducing woman to compel for marriage---Appreciation of evidence---Allegation against the accused was that he along with co-accused abducted the daughter of the complainant for marriage---Trial Court amended the charge under S.496-A, P.P.C. and convicted the accused to 2 years rigorous imprisonment with fine of Rs.5,000---Abductee left the house of her parents with her own free consent and according to her statement she had come to know after short time that she was being taken away to another city but during such long journey she never resisted or informed anyone about her abduction at the Toll Plaza or the police pickets---No evidence on the record existed that the abductee was compelled to contract marriage---Accused only proposed her to marry which she refused and no element of force had been used against the abductee who while appearing in the witness box made dishonest improvements to bring the case in line with the prosecution story---Nothing was on the record to suggest that the accused had intention to outrage the modesty of victim or he committed sexual intercourse with her---No plausible explanation existed on the record for not making statement to the police when abductee returned or on the next day---Abductee and complainant kept silent for 6 days and she remained in the custody of her father and her statements before the Investigating Officer and the Magistrate were nothing but afterthought and result of due deliberation---Complainant made several dishonest improvements in his statement while appearing in the witness box and the Trial Court had rightly observed that the evidence of the complainant and victim was not trustworthy---Complainant himself negated the entire prosecution story by moving application for exonerating the co-accused---Testimony of the complainant was unbelievable as he claimed to be accompanied by his son and they had seen the accused and the co-accused taking away the abductee---Trial Court came to the conclusion that the offence under S. 365-B, P.P.C. was not made out but the accused was convicted under S.496-A, P.P.C. which was attracted only in case where the woman was enticed away with the intent that she might have illicit intercourse with any person, or was concealed or detained with such intent and ingredients of said section were not attracted in the present case---No allegation by the abductee was on record that she was forced to have sexual intercourse with the accused or that she was abducted for such purpose because if it was so then there was nothing to prevent the accused to fulfil his desire---Prosecution had failed to prove its case beyond any shadow of doubt against the accused and conviction recorded by the Trial Court was not sustainable in the eye of law---Appeal was allowed and accused was acquitted.

Raja Ghaneem Aabir Khan for Appellant.

M. Usman, Deputy Prosecutor-General for the State.

Aslam, S.-I. with record.

Date of hearing: 24th May, 2013.

2015 P Cr. L J 213

[Lahore]

Before Sagheer Ahmad Qadri and Abdus Sattar Asghar, JJ

GHULAM QAMBAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 2227 of 2003, heard on 22nd January, 2013.

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

----Ss. 9(c) & 15---Criminal Procedure Code (V of 1898), S.516-A---Possession and trafficking of narcotic, aiding, abetment or association in narcotic offences---Disposal/destruction of recovered narcotic---Appreciation of evidence---Prosecution case was that 54 packets of charas weighing 54 Kgs. and 7 bottles of liquor were recovered from the Dera of accused persons---Recovered case property was not produced before the Trial Court---Out of seized 54 Kgs. charas, only 270 grams were separated and sent to Chemical Examiner, and remaining quantity was allegedly destroyed on the request of the prosecution with the permission of the Trial Court under S.516-A, Cr.P.C. without serving any notice to accused persons or their counsel during the trial---Validity---Alleged destruction of case-property being violative of due process of law and without providing an opportunity of hearing to accused person, lacked legal sanctity, which could not be endorsed---To discharge the onus of proof, it was incumbent upon the prosecution to establish that 54 Kgs. charas was recovered from the possession of accused persons; and same was kept in safe custody as incriminating material/case-property to produce the same before the court---Unless the incriminating material was produced before the court; and the court was satisfied that alleged recovery was made, sealed and kept properly in accordance with law, it would be difficult to endorse that accused could be held liable for alleged recovery---Benefit of non-production of incriminating material before the Trial Court, could not be extended to the prosecution, rather same would go to accused person---Prosecution had failed to establish its case under S.9(c) of the Control of Narcotic Substances Act, 1997 against accused---In view of the prosecution evidence with regard to securing of 270 grams of charas as sample from alleged recovered charas for chemical examination, and in the light of report of the Chemical Examiner, declaring the sample as charas, case of the prosecution was established only to the extent of 270 grams of charas against accused persons---Accused persons were liable for that quantity, which was punishable with seven years---Accused were convicted and sentenced accordingly---Accused persons having already served more than the sentence of seven years, they were ordered to be released forthwith, in circumstances.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Possession and trafficking of narcotic, aiding, abetment or an associate in narcotic offences---Destruction of case property during trial---Non-production of incriminating material before the Trial Court---Effect---Out of the seized 54 kgs. charas only 270 grams was separated and sent to the Chemical Examiner, and remaining was destroyed on the request of the prosecution with permission of the Trial Court under S.516-A, Cr.P.C. without serving any notice to accused persons or their counsel during trial---Alleged destruction being violative to the due process of law and without providing an opportunity of hearing to accused persons, lacked legal sanctity---Expression "under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court", used in second proviso to S.516-A, Cr.P.C. was of importance---Object of said expression was obvious that the case property was at least once produced before the Trial Court before its destruction---Contrary to that, case property, in the present case was never produced before the Trial Court for preparation of sample before destruction---Non-issuance of notice to accused person before destruction of case property during the trial, was likely to cause a serious prejudice to the right of accused---Alleged destruction was violative of the due process of law.

Nawab Ali v. The State 1995 PSC (Criminal) 246 Federal Shariat Court rel.

Ch. Javaid Akhtar Jajja and Abdul Majeed Chishti for Appellants.

Sahibzada Anwar Hameed, Special Prosecutor for the State/ANF.

Date of hearing: 22nd January, 2013.

2015 P Cr. L J 231

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD KALEEM KAMRAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 44 of 2013, decided on 24th April, 2013.

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

----Ss. 249-A & 204---Penal Code (XLV of 1860), Ss.409/419/420/468/ 471/109/34---Prevention of Corruption Act (II of 1947), S. 5(2)---Summoning of accused to face trial where there were sufficient grounds for proceeding---Scope---Halqa patwari was accused of preparing bogus documents and using the same as genuine---Trial Court summoned accused to face trial and also dismissed his application for acquittal filed under S. 249-A, Cr.P.C.---Plea of accused-Halqa patwari that he was found innocent by the police during investigation, therefore order passed by Trial Court was against the law---Validity---Prosecution had sufficient incriminating material on the record in the shape of statements of prosecution witnesses under S.161, Cr.P.C. and documents to proceed against the accused---Trial Court had the jurisdiction and power to take into consideration material produced by the prosecution on the record in order to summon and proceed against the accused---Trial Court, in the present case, had carefully scanned and considered the statements of prosecution witnesses and documentary material available on record while summoning the accused and later while rejecting his application under S.249-A, Cr.P.C.---Revision petition was dismissed accordingly.

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

----S. 173--- Opinion of police/investigating officer---Scope---Such opinion being ipse dixit was not binding upon the court.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Oral/documentary evidence, recording of---Before passing order under S. 249-A, Cr.P.C. recording of evidence was not a requirement, however fact remained that said section could not be pressed into service to stifle or throttle the prosecution for deciding fate of a criminal case without providing an opportunity to the prosecution or complainant to produce witnesses and documentary evidence---Ordinarily, the guilt or innocence of an accused would depend upon the totality of facts and circumstances revealed during trial, therefore, exception in terms of S. 249-A, Cr.P.C. had to be construed narrowly---Discretion under S. 249-A, Cr.P.C. had to be exercised judiciously and depriving the complainant to prove his case through oral or documentary evidence could not be termed as fair exercise of jurisdiction.

State v. Mir Nabi Bakhsh Khan Khosa and others 1986 PCr.LJ 1130 and The State through Collector Customs and Excise, Quetta v. Azam Malik and others PLD 2005 SC 686 rel.

Sardar Muhammad Usman Sharif Khoso for Petitioner.

Malik Riaz Ahmad Saghla, Deputy Prosecutor-General for the State.

Muhammad Sabir and Nasir-ud-Din Gazlani for Respondent No.4.

Date of hearing: 24th April, 2013.

2015 P Cr. L J 256

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. SAEEDA BIBI and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5990-B of 2013, decided on 31st December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497, first proviso---Penal Code (XLV of 1860), Ss. 365, 365-A, 395 & 411---Kidnapping or abducting with intent secretly and wrongfully to confine person, kidnapping or abduction for extorting property, valuable security etc., dacoity, dishonestly receiving property stolen---Bail, grant of---Female-accused---Evidence regarding demand of ransom not collected---Effect---Accused-females were alleged to have snatched valuables from the complainant and also demanded ransom money from him---Investigating Officer admitted that no evidence regarding demand of ransom had been collected; that all concerned officers and prosecuting agency had discussed the matter and formed the view that no case under S.365-A, P.P.C. was made out---Even otherwise accused-females were entitled to be enlarged on bail as of right in view of first proviso to S. 497, Cr.P.C.---Accused-females were admitted to bail accordingly.

Rana M. Nazir Khan Saeea for Petitioner.

Muhammad Ali Shahab, DPG along with Liaqat Ali, S.-I. with record for the State.

Nemo for Complainant.

2015 P Cr. L J 268

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ARSHAD and 3 others---Appellants

Versus

The STATE and 3 others---Respondents

Criminal Appeal No.391-J of 2009 and Murder Reference No.8 of 2010, heard on 30th September, 2013.

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

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---No direct evidence was available in the case of prosecution, which hinged on the circumstantial evidence---Every circumstance, in such like cases, should be linked with each other, and it should form such a continuous chain that its one end touched the dead body and the other neck of accused; but if chain link was missing, then its benefit must go to accused---Delay of about four days in reporting the matter had not been explained in the F.I.R.---Inordinate delay in reporting the crime to Police, cast doubt upon the veracity of prosecution case---Testimony of the witness of last seen was not worthy of reliance, as nothing was on record as to what prevented said witness from informing the complainant about the evidence of last seen earlier, when he was relative of the complainant and met him in routine---Evidence of last seen was introduced later on in order to strengthen the prosecution case---Time and date of death of the deceased, as stated by last seen evidence, did not coincide with the time and date of the deceased lastly seen alive in the company of accused persons---Evidence of last seen of the deceased with accused, should be in close proximity in the time and place of death---Recoveries of pistols at the instance of accused, were inconsequential as report of Forensic Science Laboratory, was simply to the effect that the pistols were in working order---Toka allegedly used in occurrence, was recovered from the house of accused---Witness of said recovery was not produced before the Trial Court, and he was given up being unnecessary---Evidence of recovery was merely a corroborative piece of evidence, which was relevant only, if the other piece of evidence inspired confidence, which was not the situation in the case---Recovery of dead body of the deceased, also did not advance the case of the prosecution, because, it was neither recovered at the instance of any of the accused persons, nor was there anything on the record to the effect that any of accused persons pointed out the place where deceased was allegedly done to death--- Very identification of the dead body of the deceased, remained shrouded in mystery---Prosecution case being doubtful in nature, accused were entitled to the benefit of doubt, not as a matter of grace, but as of right---Conviction and sentence awarded to accused persons, by the Trial Court, were set aside and they were acquitted of the charge of murder levelled against them while extending them benefit of doubt and were released, in circumstances.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. State 1999 SCMR 1034; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

(b) Criminal trial---

----Medical evidence---Scope and relevance of---Medical evidence was only a supporting piece of evidence, and relevant only, if the other evidence inspired confidence---Medical evidence could confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

Barrister Aiyan Tariq Bhutta for Appellants.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Ch. Nusrat Javed Bajwa for the Complainant.

Date of hearing: 30th September, 2013.

2015 P Cr. L J 285

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ZAFAR IQBAL alias ZAFRI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.168-J and Murder Reference No. 42 of 2009, heard on 22nd April, 2013.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---F.I.R. was lodged after inordinate delay of three months---Both the witnesses of the ocular account had made dishonest improvements to strengthen the prosecution case---Motive as alleged in the F.I.R., was not proved as complainant had changed said motive and stated a different story---Report of Forensic Science Laboratory with regard to Kalashnikov, allegedly recovered from accused, was withheld by the prosecution and the negative report of Forensic Science Laboratory qua said Kalashnikov, was brought on record by the defence---No recovery was effected from co-accused during the course of investigation---Prosecution evidence which had been disbelieved to the extent of co-accused, could not be believed against accused persons without there being any independent and strong corroboration, which was very much lacking in the case---Prosecution had failed to connect accused persons with the commission of crime beyond any shadow of doubt---Conviction and sentence awarded to accused persons by the Trial Court were set aside---Accused were acquitted of the charge and were released, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S. 342---Piece of evidence not put to accused during his examination under S.342, Cr.P.C.---Effect---Evidence not put to accused during his examination under S. 342, Cr.P.C., could not be used for awarding him punishment.

Akhtar Hussain Bhatti and Haider Rasool Mirza Advocate/ Defence Counsel appointed at State expense for Appellants.

Arshad Mahmood, Deputy Prosecutor-General for the State.

Shahid Tabassam for the Complainant.

Date of hearing: 22nd April, 2013.

2015 P Cr. L J 313

[Lahore]

Before Sikandar Zulqarnain Saleem, J

ASHIQ HUSSAIN alias IRSHAD alias SHAAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2308-B of 2014, decided on 14th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395, 397 & 458---Punishment for dacoity, robbery or dacoity with attempt to cause death or grievous hurt, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint---Bail, grant of---Further inquiry---Accused was involved in the case on the basis of statement of co-accused which was of no value in the eyes of law as complainant did not disclose as to how he came to know about accused's involvement in the case---Accused was not subjected to test of identification parade---Investigating Officer was bound to get arranged the identification parade and identification of recovered articles by the owners but he failed to do so---Absence of evidence showing participation of accused in commission of offence brought his case within the domain of further inquiry---Reasonable grounds to believe that accused might have committed the offence did not exist---Nothing was recovered from the accused---Accused was behind bars for the last 10 months and further incarceration would amount to punishment before trial---Bail was granted.

Walayat v. The State PLD 2008 Lah. 470 rel.

Malik Saeed Ahmed Gumb for Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor-General with Aslam, A.S.-I. for the State.

Nemo for the Complainant.

2015 P Cr. L J 338

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ALI RAZA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.1321 and Murder Reference No. 558 of 2007, heard on 10th January, 2013.

(a) Criminal trial---

----Defence plea---Duty of prosecution---Prosecution was required to prove its case against accused person beyond any shadow of doubt; and the defence version was to be taken into consideration after evaluating the prosecution evidence to find out whether same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 rel.

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

----Ss. 302(b), 324/34, 337-D, 337-F(vi) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, Jaifah, causing Manaqqilah, causing hurt not endangering life---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Occurrence had taken place at 1.00 a.m. (night) and matter was reported to the Police on the next morning---Injured prosecution witnesses, initially were taken to the Government Hospital, from there they were referred to the other Hospital---Distance between the place of occurrence and Police Station was 9 kms.---Considering said facts, the place and time of occurrence, there was no delay in reporting the matter to the Police---Ocular account of the prosecution regarding the role played by accused during the occurrence, was furnished by the complainant and injured eye-witnesses of the occurrence---All were cross-examined at length, but their testimonies could not be shaken eye-witnesses corroborated each other on all material aspects of the case; their evidence was reliable and trustworthy---Medical evidence had fully supported the ocular account furnished by eye-witnesses---Time of occurrence, seat of injuries, the kind of weapon used by accused, had fully tallied with the medical evidence---Empties secured from the spot having been sent to the Forensic Science Laboratory after the arrest of accused, possibility could not be ruled out that false empties were prepared from pistol allegedly recovered from the possession of accused; and the recovery of said pistol was fictitiously shown to be effected; it was not safe to rely upon the alleged recovery of pistol from accused; and positive report of Forensic Science Laboratory---Prosecution alleged illicit relations of accused with co-accused, who was sister of the complainant and also commission of illicit intercourse---Neither any charge was framed against accused persons under Offence of Zina (Enforcement of Hudood) Ordinance, 1979; nor they had been convicted for the same by the Trial Court---Motive, as alleged by the prosecution, had not been proved, in circumstances--- Plea of accused was that prosecution witnesses had come to kill him as he contracted marriage with co-accused, who was sister of complainant, against the wishes of the prosecution witnesses and the deceased---Accused could not produce any witness in proof of his said plea---Accused, in circumstances, could not prove the plea taken by him---Sufficient incriminating evidence was available on the record against accused to prove the case of prosecution against him---Prosecution case was fully proved through evidence of eye-witnesses, their evidence was quite natural, straightforward and confidence inspiring---Prosecution having proved its case against accused beyond the shadow of doubt, all the convictions and sentences awarded to accused by the Trial Court were maintained, but sentence of death awarded to him under S.302(b), P.P.C. was altered to imprisonment for life, in view of mitigating circumstances in his favour.

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

----S. 302(b)--- Qatl-i-amd---Sentence, quantum of--- Mitigating circumstances---Accused was awarded death sentence, but in view of mitigating circumstances in favour of accused, sentence of death was quite harsh---Mitigating circumstances in favour of accused were firstly that evidence of recovery of pistol from the possession of accused, could not be believed, for the reason, that possibility could not be ruled out that false empties were prepared from the pistol allegedly recovered from the possession of accused; and recovery of pistol was fictitiously shown to be effected; Secondly that occurrence took place without any premeditation in the house of accused at the spur of the moment and thirdly that the prosecution had failed to prove alleged specific motive---Accused was also entitled for the benefit of doubt as an extenuating circumstance, while deciding question of sentence---As to what had actually happened immediately before the occurrence, which had resulted into the death of deceased was not determinable---Accused, in peculiar circumstances of the case, deserved benefit of doubt to the extent of his sentence, one out of the two provided under S.302(b), P.P.C.---Sentence of death awarded to accused under S.302(b), P.P.C., was altered to imprisonment for life, in circumstances.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

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

----Ss. 302(b), 324/34, 337-D, 337-F(vi) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, Jaifah, causing Manaqqilah, causing hurt not endangering life---Appreciation of evidence---Benefit of doubt---Co-accused, a woman, had not been attributed any active role during the occurrence---Joint Lalkara, though was attributed to co-accused and accused, but said joint Lalkara was raised when occurrence was almost completed; and thereafter only one fire shot was made by accused which landed on the chest of prosecution witness---None of the prosecution witnesses, while appearing before the court, had stated that co-accused raised Lalkara during the occurrence---Co-accused had not caused any injury to the deceased or any member of the complainant party---Accused persons had not launched attack on the complainant party with premeditation, but according to the prosecution's own case, it was the complainant party who entered the house of accused at midnight in search of co-accused---Case of prosecution against co-accused, had not been proved beyond the shadow of doubt---Conviction and sentences awarded to co-accused vide impugned judgment passed by the Trial Court, were set aside and she was acquitted from the charges by extending her the benefit of doubt and was released from the jail.

(e) Criminal trial---

----Motive---Proof---If a specific motive had been alleged by the prosecution, then it was duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence---Non-proof of motive could be considered a mitigating circumstance in favour of accused.

Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Mrs. Bushra Qamar for Appellants.

Ch. Arshad Mahmood, Deputy Prosecutor-General for the State.

Muhammad Asif Ismail for the Complainant.

Date of hearing: 10th January, 2013.

2015 P Cr. L J 361

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHAHZAD ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 587 of 2012, decided on 3rd April, 2013.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss. 464 & 539---Qatl-i-amd---Lunatic---Determination---Report of Medical Board---Accused claimed to be suffering with schizophrenic illness and filed application for declaring him as lunatic---Validity---Mere determination by Jail Medical Officer about unsoundness of mind of accused had no meaning as he was residing in jail and there was a possibility that he had influenced Jail Medical Officer for declaring him unfit for trial---Report firstly submitted by Medical Board was not proper in its form and court had rightly directed the Board to resubmit the same and the Board on the basis of first examination conducted in respect of accused had submitted report later on, treating accused fit for facing trial---When first report was not signed by all members of Medical Board, then it could not be that opinion given by all members was correct and all agreed with the same---Medical Board was not facing pressure of institution of contempt petition and did not change its view---Accused alleged his sickness prior to occurrence and his admission in hospitals and receiving treatment from different Medical Officers but no proof of such treatment was appended with application for examination of court, as such the same showed malice on the part of accused to have wrongful gain by declaring him unfit to stand trial---Plea of unsoundness of mind was raised at belated stage which also did not inspire confidence and cast serious doubt upon bona fide of accused---Revision was dismissed in circumstances.

Ch. Ali Muhammad for Petitioner.

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Rana Bakhtiar Ali for Respondent No.2.

2015 P Cr. L J 379

[Lahore]

Before Shah Khawar, J

JALEES AHMAD and 21 others---Petitioners

Versus

SPECIAL JUDGE, ANTI-CORRUPTION, D.G. KHAN and 9 others---Respondents

Writ Petition No.6375 of 2013, decided on 3rd December, 2014.

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

----S. 5(2)---Penal Code (XLV of 1860), S. 409---Pakistan Criminal Law Amendment Act (XL of 1958), S. 5(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and criminal breach of trust---Special Judge Anti-Corruption, jurisdiction of---Direction to police---Special Judge directed ordinary/local police to investigate the matter---Validity---Special Judge Anti-Corruption while invoking provision of S.5(6) of Pakistan Criminal Law Amendment Act, 1958, wrongly exercised jurisdiction while ordering the investigation be conducted by local/ordinary police in a case which squarely fell within the ambit of Anti-Corruption Establishment---High Court set aside the order passed by Special Judge Anti-Corruption to the extent to conduct investigation into the crime registered at police station Anti-Corruption Establishment---Petition was allowed accordingly.

Dr. Ishtiaq Hussain and another v. Special Judge, Anti-Corruption (Provincial), Rawalpindi Division, Rawalpindi and 3 others 2004 YLR 716 ref.

Tahir Mehmood for Petitioners.

Rana Muhammad Hussain, A.A.-G. with Ghulam Farid, ASI/SCE, Muzaffargarh for Respondents.

2015 P Cr. L J 387

[Lahore]

Before Abdul Sami Khan, J

Sheikh KHALID MEHMOOD---Petitioner

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Writ Petition No. 16573 of 2013, decided on 31st July, 2013.

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

----S. 22-A--- Constitution of Pakistan, Art. 199--- Constitutional petition---Investigation of offence---Registration of criminal case---Accused assailed order passed by Ex-Officio Justice of Peace directing police to register case, if any offence was made out from statement of complainant---Validity---Question whether deceased had been administered poisonous tablets by accused and his other family members or he himself committed suicide was a question of fact which could be resolved after recording of evidence---Such exercise could not be carried out by High Court in summary procedure while sitting in Constitutional jurisdiction---Matter needed thorough investigation which could be conducted at an appropriate stage by police---High Court declined to assume role of police at such premature stage and did not interfere in the matter as the same would amount to throttle investigation---No illegality or infirmity in the order passed by Ex-Officio Justice of Peace had taken place, same was maintained---Petition was dismissed in circumstances.

PLD 2007 SC 539 and 2011 YLR 131 ref.

PLD 1971 SC 77 and PLD 1993 SC 399 rel.

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

----Art. 114---Criminal Procedure Code (V of 1898), S. 156---Criminal investigation---Scope---Rule of estoppel has nothing to do with criminal investigation or proceedings.

2009 PCr.LJ 1259 rel.

Muhammad Aqeel Wahid Chaudhary for Petitioner (in W.P. No.16573 of 2013).

Ch. Khalid Rasheed for Petitioner (in W.P. No. 16394 of 2013).

Sittar Sahil, Assistant Advocate-General for Respondents along with Basharat Ullah Inspector with record.

2015 P Cr. L J 410

[Lahore]

Before Sikandar Zulqarnain Saleem, J

Mst. AZEEMAN MAI---Petitioner

Versus

The STATE and 8 others---Respondents

Criminal Revision No. 96 of 2014, heard on 7th April, 2014.

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

----Ss. 154 & 200---Penal Code (XLV of 1860), Ss.302, 460 & 34---Qatl-i-amd, persons jointly concerned in lurking house-trespass or house breaking by night, punishable for qatl or hurt caused by one of them common intention---"Challan case" and "private complaint case", consolidation of---Scope---Petitioner/ complainant, initially filed private complaint for an occurrence in which her husband was murdered, against unknown persons---Later on through supplementary statement complainant named eight accused persons---Out of said eight persons, four were declared innocent by the Police after investigation, two were declared proclaimed offenders, and their names were indicated in Column No.2 of the challan with red ink, and remaining two were shown as accused in challan case---Trial in the challan case was initiated and the prosecution evidence was being summoned when the petitioner/complainant filed private complaint under S.200, Cr.P.C.---Trial Court had dismissed the private complaint---Contention was that private complaint should be given preference over the challan case at the time of hearing of the two cases (private complaint case and State challan case)---If the set of the prosecution witnesses accused and the version of the complaint case, as well as the challan case was the same, then both the cases could be consolidated; and there would be no necessity of holding separate trials; but if any said condition was not fulfilled then preference would be given to the complaint case at the trial---Version in the State challan case and the private complaint case was the same---Witnesses in both the cases were the same, only difference was that in the State challan case, four persons out of eight had been found innocent by the Investigating Officer, whereas two accused were declared proclaimed offender, and remaining two were shown as accused against whom a prima facie case was stated to have been made out---Said four accused persons in the private complaint case, had been found to be persons against whom a prima facie case stood made out---Where, the prosecution story and the defence version basically differed; and certain accused persons named by the complainant were found innocent or certain were not named, rule laid down in case PLD 1966 SC 708, wherein it had been specifically laid down that in the similar circumstances the complaint case was to be given preference over the challan case at the time of hearing of the two cases, would be applicable---Since accused in the case initiated upon the Police report, and complaint case, were the same, Trial Court would consolidate the both, the complaint case and the challan case, and hold the proceedings in complaint case---Court would frame the formal charge, examine all the witnesses mentioned in complaint and Police report case and announce the one judgment in both cases---Where the version and accused were practically the same, in both the complaint and challan cases, a separate trial was not necessary---Impugned judgment of the Trial Court was set aside, with direction to the Trial Court to proceed with the complaint; and complainant would be able to avail opportunity to cross-examine those formal Police witnesses, who would be summoned by the court on request of complainant/prosecution, or at its own to be examined as court witnesses.

Noor Elahi v. The State PLD 1966 SC 708; Rashid Ahmad v. Asghar Ali and others PLD 1986 SC 737; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 and Mst. Anis Begum v. Muhammad Khushdil and another PLD 1981 Kar. 141 ref.

Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 rel.

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

----S. 200---Complaint case---Scope---Private complaint under S.200, Cr.P.C., was basically a petition of protest against accused and Investigating Agency for their misuse of process of law; when they would do the practice not close to the facts and circumstances of the case, the complainant would have no other remedy, except to knock at the door of competent court for the sake of dispensation of justice and redressal of his/her grievance.

Rana Muhammad Liaqat Ali for Petitioner.

Date of hearing: 7th April, 2014.

2015 P Cr. L J 424

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

ZAFAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 451 and Murder Reference No.187 of 2007, heard on 7th November, 2013.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Complainant had stated that after preliminary investigation, police had recorded statement, and that Police visited the place of occurrence on the following day, therefore, it could not be said that F.I.R. was lodged promptly---Postmortem examination was conducted on the following day of the occurrence---Incident took place at night, but prosecution had failed to prove any source of light available at the time of occurrence at the place of occurrence---No enmity existed between the parties, prior to the happening of the occurrence---Prosecution had not been able to prove motive---Complainant was real brother of the deceased and other prosecution witness being father of the deceased, though related to the deceased, but their presence at the place of occurrence had not been proved beyond shadow of reasonable doubt---Testimony of said persons was thrown out of consideration, and was disbelieved in circumstances---Recovery of .12 bore double barrel gun, allegedly recovered on the pointation of accused, needed no discussion for want of any Ballistic Expert Report, which recovery did not advance the prosecution case---Prosecution case was replete with doubts, and prosecution failed to prove its case against accused beyond any shadow of reasonable doubt---Conviction and sentence of accused, was set aside, and he was acquitted of the charge against him by extending him benefit of doubt, and he was directed to be enfranchised in the case.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Amin Ali and another v. The State 2011 SCMR 323 rel.

(b) Criminal trial---

----Motive---Failure to prove---Effect---If the given motive was not proved, then the prosecution had to suffer for it---When no evidence had been brought by the prosecution to prove it; then no other conclusion would be drawn, except that prosecution had failed to prove it.

Ans-bin-Ghazi for Appellant.

M. Younas Naul for the Complainant.

Saeed Ahmad Sheikh, Additional P.-G. for the State.

Date of hearing: 7th November, 2013.

2015 P Cr. L J 456

[Lahore]

Before Sardar Tariq Masood and Miss Aalia Neelum, JJ

Mst. RUQQIA BIBI---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT and 2 others---Respondents

Writ Petition No. 19809 of 2013, decided on 9th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 336-A & 336-B [as inserted by Criminal Law (Second Amendment) Act (XXV of 2011)]---Constitution of Pakistan, Art. 199---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 12---Constitutional petition--- Hurt caused by corrosive substance--- Anti-Terrorism Court---Jurisdiction---Grievance of petitioner was that Anti-Terrorism Court declined to transfer case for trial to Court of planery jurisdiction---Validity---Ingredients of offence under S. 336-A, P.P.C., punishable under S. 336-B, P.P.C. were fully attracted, which were exclusively triable by Anti-Terrorism Court---Order passed by Anti-Terrorism Court was reasonable and proceeded on cogent grounds---Petitioner failed to point out any infirmity legal or factual in the order passed by Anti-Terrorism Court---Petition was dismissed in circumstances.

Shahid Azeem for Petitioner.

Khurram Ikram Bhatti, Additional Advocate-General with Habib Ullah, S.-I. with record for Respondents.

2015 P Cr. L J 470

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

RAHEEL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1190, 263-J, Criminal Revision No.850 and Murder Reference No.309 of 2009, heard on 26th February, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive asserted by the prosecution was not plausible, which had indicated that the witnesses had the reason to falsely implicate accused, due to the previous enmity---Prosecution witness being resident of a place which was 15 Kilometers away from the place of occurrence, his presence at the spot was doubtful, because there was no reason for him to be present there at the relevant time---Presence of other witness was also doubtful---Medical evidence contradicted the ocular account which negated the presence of the eye-witnesses at the place of occurrence---Postmortem was conducted after 9-1/2 hours of the occurrence, which cast doubt regarding the prosecution story---Recovery of .222 bore rifle from accused was inconsequential because no crime empty was recovered from the spot nor any positive matching of Forensic Science Laboratory was on record---No recovery having been effected from both accused persons, prosecution story was doubtful---Statements of related and inimical witnesses could not be taken into consideration, unless same was corroborated by the independent evidence; which was lacking in the case, because motive as asserted was not proved---FIR was chalked-out with delay which was not explained---Postmortem was also conducted with unexplained delay---Many doubts existed in the prosecution story---Extending the benefit of doubt to accused persons, appeals were allowed---Conviction and sentence passed by the Trial Court were set aside, accused were acquitted of the charge and were released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---If any doubt would arise from the prosecution evidence, benefit of the same was to be extended to accused.

Barrister Danyal Ijaz Chadhar for Appellants (in Criminal Appeal No.1190 of 2009).

Mrs. Aneela Iqbal Bhatti for Appellants (in Criminal Appeal No.263-J of 2009).

Muhammad Akhlaq, D.P.-G. for the State.

Muhammad Anwar Basit for the Complainant.

Date of hearing: 26th February, 2014.

2015 P Cr. L J 493

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

SAJJAD AHMAD alias JADU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.470-J of 2010 and Murder Reference No.583 of 2010, heard on 3rd June, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Mitigating circumstances---Sentence, reduction in---Case was of murder of a young man of the age of 28/29 years, committed in the broad daylight in presence of the witnesses, reported well in time by the complainant with specific role of firing by accused on the head of the deceased---Time, day and place of occurrence was not denied by the defence---All witnesses deposed in accordance with their statements, recorded before the Police, without any noticeable deviation or improvement---All said witnesses, during cross-examination, remained consistent with each other, regarding the actual occurrence; and the defence could not point out any material discrepancy in their statements, sufficient to discard their testimony, especially regarding the actual occurrence---Said witness faced the rigour of lengthy cross-examination, but nothing favourable to the defence, could be drawn---Question of substitution, did not arise in view of the relationship of the complainant with the deceased, who was his real mother---Real mother possibly would not let the real murderer of her son go unpunished, and nominate an innocent person---Incident being daylight occurrence, fact that accused was known to the prosecution witnesses, possibility of mistaken identity, could not be accommodated---Reason for their being at the place of occurrence had been sufficiently explained by the witnesses; and promptitude in reporting the matter to the Police, also confirmed their presence at the relevant time---Unknown person also accompanying accused at the time of occurrence, it was natural on the part of the complainant to nominate the persons to dig out the unknown person---Medical evidence was completely in consonance with ocular account---Motive part of the occurrence, was not proved beyond doubt against accused---Prosecution remained successful to prove occurrence against accused through the ocular account beyond shadow of reasonable doubt by discharging its responsibility to prove the same---Real facts which were actual cause of murder could not be surfaced during the evidence, which were shrouded in mystery---Evidence of motive and recovery of crime weapon, though had been disbelieved, but in view of cogent, unimpeachable and confidence inspiring direct evidence, corroborated by medical evidence; such like flaws could be treated as immaterial, but same could be used as an mitigating circumstance while awarding the sentence to accused---While deciding question of sentence, accused was entitled to the benefit of any available mitigating circumstance---While maintaining conviction of accused under S.302(b), P.P.C., his sentence of death was converted into imprisonment for life as Tazir.

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 ref.

(b) Criminal trial---

----Interested witness---Mere relationship of the witness with the deceased, was not sufficient to declare them the witness as interested witness, especially when there was no reason available to the witness for false implication of accused.

Muhammad Mansha v. The State 2001 SCMR 199; Muhammad Ahmad and another v. The State and another 1997 SCMR 89 and Ijaz Ahmad v. The State 2009 SCMR 99 ref.

Muhammad Arshad Bhatti and Ms. Saiqa Javed for Appellant.

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

Date of hearing: 3rd June, 2014.

2015 P Cr. L J 511

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

TALLAT alias ARSHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.341-J and Capital Sentence Reference No.60/T of 2010, heard on 10th February, 2014.

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

----Ss. 302(b), 224, 353, 396, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.7(a)(h) & 21-L---Qatl-i-amd, resistance or obstruction by a person to his lawful apprehension, assault or criminal force to deter public servant from discharge of his duty, dacoity with murder, rioting, common object, act of terrorism, abscondence---Appreciation of evidence---FIR, in the case was registered almost six and a half hours after the occurrence---None of the witnesses forming the ocular account had attributed any specific role to accused, nor could he be assumed to have fired at the Police party during the Police encounter---Testimony rendered by one of prosecution witnesses, did not divulge in any sense that accused had any link with car riders, who fired at the prisoners van---None of the eye-witnesses had claimed that they saw accused engaged in the encounter with the Police---Firing between the parties allegedly continued for 1-1/2 hours, but Investigating Officer failed to collect crime empties from the place of occurrence---Story of Police encounter as narrated by the eye-witnesses, did not disclose that accused was accompaning those who perished in the encounter---Ocular account did not connect accused with commission of offence---Same could not be trusted or relied on for sustaining his conviction and sentence, and was brushed aside, in circumstances---Recovery of official Sub-machine guns/rifles and five pistols of .30-bore from the place of occurrence, hardly connect accused with the commission of offence as said things had not been dispatched to office of Forensic Science Laboratory for comparison---Evidence of recovery of handcuff, allegedly attributed to accused, appeared having been manoeuvred by the prosecution to strengthen its case against accused---Defence plea of accused that the fear motivated him to run away for his life, could not be undermined by merely looking at the dead bodies fallen here and there on both the sides, for none of the fault of accused--- Prosecution having failed to prove all the charges against accused, impugned judgment which had been passed by the Trial Court merely on conjectures and surmises, was set aside and accused was acquitted of the charge and was released, in circumstances.

(b) Criminal trial---

----Evidence---Medical evidence---Scope---Medical evidence could divulge every necessary detail as to the kind and nature of bodily injuries received by a living or dead persons; and the weapon used for infliction of such injuries, but as to who had done so, was not the subject of the medical evidence.

Ms. Bushra Qamar for Appellant (Defence counsel at State expense).

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

Date of hearing: 10th February, 2014.

2015 P Cr. L J 532

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD YOUNIS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1885-B of 2014, decided on 7th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 411---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, dishonestly receiving stolen property---Bail, refusal of---Accused was nominated in the FIR with a specific role---Fraud of quite a huge amount had been committed in the case in a sophisticated manner---Narration of the FIR, prima facie stood corroborated by the material so far collected by the Investigating Officer---One of the prosecution witnesses in his statement recorded under S.161, Cr.P.C. had specifically named accused along with his brother---Mobile/call data collected by the Investigating Agency, had provided sufficient incriminating material against accused---Accused had a criminal history of involvement in similar cases and was involved in a white-collor crime, and such offences were not victimless---By passage of time such type of crimes, were becoming more sophisticated than ever---Direct evidence in the case though may not be available, but prima facie prosecution had succeeded in collecting such an evidence which sufficiently provided a chance to connect accused with commission of alleged crime---Accused could not be enlarged on bail, in circumstances.

Malik Ali Muhammad Dhol for Petitioner.

Malik Muhammad Jafar, Deputy Prosecutor-General with Farhat Sub-Inspector with record for the State.

Muhammad Wasim Khan Jaskani for the Complainant.

2015 P Cr. L J 547

[Lahore]

Before Ali Baqar Najafi, J

WAQAS AHMAD---Petitioner

versus

The STATE and another---Respondents

Criminal Revision No.308 of 2013, decided on 11th February, 2014.

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

----Ss. 4(c) & 221---Penal Code (XLV of 1860), Ss.302(b), 392, 396 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Deletion of offence---Application for deletion of offence under S.302, P.P.C. was filed by petitioner/accused on the ground that on the report of post-mortem as well as report of Forensic Histopathology, charge under S.302, P.P.C. was not made out---Said application having been dismissed, accused had filed revision petition---Deceased lady aged 80 years, was found dead, and the witnesses had seen the petitioner/accused leaving the house, who had subsequently been identified in the test identification parade---Court, in circumstances was required to frame charge under S.302(b), P.P.C.---If the charge under S. 392, P.P.C. was framed by the Area Magistrate; and subsequently the offence under S.302(b) or 396, P.P.C. was found to have been committed, case would be sent to the Court of Session---By merely framing a charge under S.302(b), P.P.C., would not make it mandatory for the court to convict the petitioner only under S.302(b), P.P.C. regardless of the insufficiency of the requisite evidence---Material in the form of FIR registered under S.302, P.P.C. the medical opinion, identification parade etc. were enough to frame a charge under S.302(b), P.P.C.

Jiand v. The State 1991 SCMR 1268; Muhammad Wakeel v. The State 2006 SCMR 1731; Muhammad Sultan v. The State 2008 YLR 1453 and Amir Bakhsh v. The State PLD 1960 Lah. 15 ref.

M. Younus Habib v. The State PLD 2006 SC 153; Mst. Sughran Bibi v. Sajjad Hussain and 4 others 2009 MLD 13 and S.A.K. Rehmani v. The State 2005 SCMR 364 rel.

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

----Ss. 4(c) & 221---Charge---Purpose of framing charge---'Charge', would include any head of charge, the purpose of which was to tell accused as precisely and concisely as possible about the matter, which the prosecution intended to prove against him in order to afford him an opportunity to defend himself---Framing of charge would call for application of judicious mind on the facts placed on the record by the prosecution on the basis of investigation---Mandatory under S.221, Cr.P.C. upon the court to state specific name of the offence, and its description so as to fulfil the legal requirements to constitute the offence charged in the particular case.

Asif Iqbal and others v. The State and others 2012 PCr.LJ 91 ref.

Malik Saeed Hassan for Petitioner.

Mian Imran Rahim, D.P.-G. for the State.

Aslam Nisar for the Complainant/Respondent No.2.

2015 P Cr. L J 569

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

AURANG ZEB alias PAPPU---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 998, Murder Reference No.245 and Criminal Revision No. 545 of 2010, heard on 3rd February, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---FIR was straightaway lodged at the Police Station after the occurrence---FIR having been chalked out within two hours of the occurrence, delayed postmortem was not fatal to the prosecution---Presence of prosecution witnesses at the place of occurrence (Petrol Station) where deceased was working at the relevant time, could not be doubted, as both prosecution witnesses, who were real brothers of the deceased, went to Petrol Station to provide meal to the deceased---Witnesses had no animosity or motive to falsely involve accused in the case; they remained consistent on each and every material point---No contradiction or improvement was pointed out in their statements---Mere relationship of said witnesses with the deceased, was not sufficient to term them as interested witnesses---Witnesses and accused, were known to each other previously---Sufficient light being available at the place of occurrence, there could be no mistaken identity in the case---Witnesses gave minute detail of the occurrence so far as time, place and mode of occurrence was concerned---Ocular account furnished by prosecution, was trustworthy and believable---Medical evidence fully supported the ocular account---Prosecution remained successful in proving the case against accused through ocular account, even in absence of recovery of empties and weapon of offence---Prosecution had proved its case against accused beyond any shadow of doubt, and the Trial Court had rightly convicted accused under S.302(b), P.P.C.---Complainant made certain improvements, after more than three months of the occurrence, in order to strengthen the motive---No independent witness was produced to prove the motive, and immediate motive of the occurrence was shrouded in mystery---Accused fired a solitary shot and he did not try to repeat the same---Accused, in circumstances, was entitled for the mitigation in his sentence--- Maintaining conviction of accused, his sentence was reduced from death to imprisonment for life with benefit of S.382-B, Cr.P.C.

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

----S. 302(b)--- Qatl-i-amd--- Evidence of related witness--- Scope---Relationship of the witnesses with the deceased, would not be sufficient to discard the evidence adduced by said witnesses---Such related prosecution witnesses, could be believed, if intrinsic worth of their testimony inspired confidence, and same led to an inference that the witnesses had seen the occurrence.

Barrister Danial Ijaz Chadhar for Appellant.

Mirza Abid Majeed, D.P.-G. for the State.

Ch. Zahid Iqbal for the Complainant.

Date of hearing: 3rd February, 2014.

2015 P Cr. L J 596

[Lahore]

Before Ijaz Ahmad and M. Sohail Iqbal Bhatti, JJ

MUNSHI AFZAL and others---Petitioners

versus

MUHAMMAD SHOAIB, INVESTIGATION OFFICER NAB RAWALPINDI and 2 others---Respondents

Writ Petitions Nos. 345, 611, 274 of 2011 and 5411 of 2010, decided on 4th December, 2013.

(a) Interpretation of statutes---

----One provision of a statute cannot be read as a sore thumb and for the purposes of interpretation the entire statute has to be read as a whole.

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

----Ss. 9(a) & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Words 'any other person' appearing in S. 9(a) of the National Accountability Ordinance, 1999---Scope---Petitioner assailed notice issued by NAB on the plea that no investigation could be initiated against him as he was not a holder of public office---Validity---Provisions of National Accountability Ordinance, 1999, were applicable even to a person who was not holder of a public office but had aided, assisted, abetted, attempted or acted in conspiracy with holder of a public office---Words 'any other person' appearing in section 9 (a) of National Accountability Ordinance, 1999, were to be understood and applied accordingly---Private person could be proceeded against under National Accountability Ordinance, 1999, if the other conditions mentioned in the Ordinance were satisfied---Petition was dismissed in circumstances.

Alhaj Habib ur Rehman Abbasi and Nasim Sabir Ch. for Petitioners (in Writ Petitions Nos. 345, 274 of 2011 and 5411 of 2010).

Barrister Saeed ur Rehman, A.G.P.G. for NAB.

Ghulam Farooq Awan for Petitioner (in Writ Petition No. 5411 of 2010).

2015 P Cr. L J 626

[Lahore]

Before Abdus Sattar Asghar, J

The STATE through Prosecutor General Punjab---Petitioner

versus

KHAWAR RAFIQUE and 5 others---Respondents

Writ Petition No.21270 of 2012, decided on 9th April, 2014.

Punjab Prevention of Gambling Ordinance (VII of 1978)---

----S. 5---Criminal Procedure Code (V of 1898), Ss. 63 & 173---Constitution of Pakistan, Art. 199---Constitutional petition---Discharge of accused---Re-investigation---Principle---Respondent was arrested by police on the allegation of gambling at a public place but Magistrate discharged him of the charge---Validity---Magistrate had lawful authority to grant effective relief to a person arrested or detained by police in absence of sufficient cause or material---Order under S.63, Cr.P.C. passed by Magistrate did not extinguish process of investigation which could proceed in accordance with law until police would submit report under S. 173, Cr.P.C.---When accused was released / discharged by Magistrate under S. 63, Cr.P.C., police could not re-arrest him without order of Magistrate---Order of Magistrate refusing remand and discharging accused did not amount to cancellation of case---Magistrate was well within his jurisdiction to pass order of release of respondent and there was no jurisdictional error or legal infirmity in the order---Petition was dismissed in circumstances.

Muhammad Nawaz Shahid, DDPP for the State.

2015 P Cr. L J 678

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Tariq Abbasi, JJ

MUHAMMAD NAWAZ---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 52-J of 2009 and Murder Reference No.110/RWP of 2009, decided on 16th June, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging the crime report was not fatal to the prosecution version---Statement of complainant/father of the deceased, was based upon hearsay, and he had only seen accused at Bus Stop in a perturbed condition, while his clothes were having stains of blood---Prosecution witness, was the sole witness of the occurrence, who at the time of making his testimony was 10 years old---Before recording statement of said witness, his mental capacity to depose before the court was determined by the Trial Court, while putting him as many as eight questions---Trial Court after satisfying with the answers of said witness, recorded his statement---Said witness, while giving minute details of the occurrence remained consistent about the prosecution version, that it was the accused who had assaulted upon the deceased by inflicting number of injuries by hatchet---No single crack was located, which could be of much importance in order to believe, that it would not be safe to rely upon statement of said witness---Medical evidence fully lent support to the prosecution version---Hatchet recovered from accused, was sent to the office of Chemical Examiner/Serologist, who reported that same was stained with human blood---Prosecution version qua recovery of hatchet, was in line with other features of the prosecution witnesses---Complainant, who was father of the deceased, had no ill-will or previous enmity to have substituted accused, who was his brother, in place of real culprits---During course of investigation, accusation, levelled against accused in the crime report, were found correct, and his name was placed in column No.3 of the report prepared under S.173, Cr.P.C.---Weapon 'hatchet', used by accused was as lethal as any firearm---Number as well as locale/seat of injuries on the person of deceased, imprinted the intent of accused and unveiled his reckless conduct, who by inflicting, numerous injuries on the person of the deceased had committed his murder---Normal sentence for culpable homicide amounting to murder, was death---Prosecution witnesses, being not tested on the touchstone of Tazkia-tul-Shahood, Trial Court was justified to convict accused under S.302(b), P.P.C., and sentenced him to death---Prosecution having substantiated its case through leading evidence of the most natural witness of the occurrence who remained coherent on salient features of the prosecution version, impugned judgment of the Trial Court was maintained/upheld, in circumstances.

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

----Art. 17---Number of witnesses---Requirement of law in criminal cases was quality of evidence, and not the quantity---No hard and fast rule exist qua the number of prosecution witnesses to prove the prosecution story---Article 17(1)(b) of Qanun-e-Shahadat, 1984, made it abundantly clear that particular number of witnesses, would not be required for the proof of any fact---Conviction of accused, could be recorded on the basis of solitary statement of eye-witness, if found truthful, natural and not interested in the deceased or on inimical terms with accused.

Muhammad Ashraf v. The State 1971 SCMR 530; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917 and Takdir Samsuddin Sheikh v. State of Gujaraat and another 2012 SCMR 1869 ref.

(c) Criminal trial---

----Related witness---Mere close relationship of the prosecution witness with deceased, or the complainant, could not be a reason for discarding his testimony, if otherwise same was trustworthy, appealing to reason and corroborated by an independent circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

(d) Criminal trial---

----Motive---Proof of---Once motive was set forth in the crime report, prosecution was under bounden duty to prove the same---If otherwise, the case of the prosecution was proved from direct evidence of ocular account, finding full corroboration from medical evidence, and other independent/attending circumstances, conviction could be recorded.

Musa v. The State 2008 SCMR 997; Raza Khan v. The State 1998 PCr.LJ 530 and Muhammad Asif alias Assa v. The State 2009 YLR 498 rel.

Syeda B. H. Shah for Appellant.

Mirza Muhammad Usman, Additional Prosecutor-General with Zafar, A.S.-I. for the State.

Nemo for the Complainant.

Date of hearing: 16th June, 2014.

2015 P Cr. L J 703

[Lahore]

Before Mazhar Iqbal Sidhu and Arshad Mahmood Tabassum, JJ

MUHAMMAD SHAFIQUE and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.635-J and 700 of 2009 and Murder Reference No.140 of 2009, heard on 17th April, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 394--- Qatl-i-amd, voluntarily causing hurt in committing robbery---Appreciation of evidence---Accused persons could not be identified at the time of occurrence, though their features to some extent were mentioned in the FIR---Number of persons allegedly had witnessed the occurrence whose names were mentioned in the FIR, but except the complainant nobody came forward to support the prosecution case---Prosecution had to bank upon a witness who was introduced at a subsequent stage, his testimony could be discarded for the reason that he was not shown present at the spot by the complainant in his statement---Said witness did not join investigation primarily, his statement was also full of improvements and discrepancies---Identification parade which had certain inherent defects, could hardly be made basis of the conviction of accused---No crime empty having been recovered from the spot, alleged recovery of pistol 30 bore on the pointation of accused, was of no consequence---Prosecution evidence was discrepant and highly insufficient to base conviction of accused in a charge entailing capital punishment---Impugned conviction and sentence, were set aside, in circumstances.

Muhammad Fayyaz v. The State 2012 SCMR 522 and Ghulam Qadir v. The State 2008 SCMR 1221 ref.

Malik Sadiq Mahmood Khurram for Appellants.

Hassan Mahmood Khan Tareen, Deputy Prosecutor-General for the State.

Rana A.D. Kamran for the Complainant.

Date of hearing: 17th April, 2014.

2015 P Cr. L J 712

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

IBRAHIM and 2 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. 768 of 2007, heard on 10th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34, 96 & 97---Qatl-i-amd, common intention, right of private defence, exercise of---Appreciation of evidence---Benefit of doubt---Accused persons were recommended for prosecution in cross-version, and complainant while introducing the cross-version, did not explain the death of deceased in that case---Such suppression of magnum fact alone could be taken sufficient to doubt prosecution case---Post-mortem report of the deceased, had shown no injury having been caused with firearm---Role attributed to accused had not been found likened by the post-mortem report---Complainant party, in the cross-version, while armed with deadly weapons launched assault and there was free-fight between the parties---Liabilities attributed to two accused persons, were that they had common intention to cause injuries on the person of deceased which fact was supported by the opinion of the doctor--- Special mitigating circumstances existed because complainant party was the aggressor---Accused, in circumstances, even in absence of specific plea of right of self-defence, it could by inferred by the court that right of self-defence had accrued to accused persons and they were protected by Ss.96 & 97, P.P.C.---Prosecution had not been able to prove its case against accused persons beyond shadow of reasonable doubt and right of self-defence had legitimately been exercised by accused persons and they had committed no offence---Convictions, sentences of all accused persons, were set aside and they were acquitted of the charges impugned against them by extending benefit of doubt.

Hadith of Holy Prophet Muhammad (may peace be upon him) No. 259 published in Sahih Muslim (Volume-I) (Chapter LXIII) and Muhammad Akram v. The State 2012 SCMR 440 rel.

Malik Saeed Hassan Awan for Appellants.

Tariq Shafique Bhandara for the Complainant.

Saeed Ahmad Sheikh, A.P.-G. for the State.

Date of hearing: 10th October, 2013.

2015 P Cr. L J 727

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHOAIB alias SABA---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.7786-B of 2014, decided on 23rd October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Complainant in F.I.R. had alleged that accused had fired hitting over the left eye of the deceased, but that injury was not available in the pictorial attached with the postmortem report---Pictorial showed that the injury was received by the deceased at the back of his head; and had exit from right eye brow of the deceased---Complainant, though made a supplementary statement charging attribution to accused within one hour, but there was possibility that within that time, the complainant after consultation and deliberation had changed the attribution just to bring it in line with the postmortem report---Complainant had also filed private complaint regarding the same occurrence, in which the seat of injury was at the back of the head of the deceased--- Accused was lying behind the bars in the State case without any trial, which detention could be termed as illegal and unjustified---Accused was facing trial in the private complaint, and was in detention since 12-3-2013, and there was no possibility of conclusion of the trial in near future---Accused was entitled for his release on post arrest bail---Accused, was admitted to bail, in circumstances.

Azam Nazeer Tarar for Petitioner.

Muhammad Ishaque, D.P.-G. with Tariq, S.-I. for the State.

Syed Ijaz Qutab and M. Tanvir Ch. for the Complainant.

2015 P Cr. L J 766

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

NIAZ ALI SHAH---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.3546-B of 2014, decided on 15th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Mere presence at place of occurrence---Non-attribution of any injury---Accused was merely shown to be present at the spot while armed, but no injury to the deceased or injured persons was attributed to him---Accused was shown in the FIR to be a silent spectator who despite being armed with a weapon did not use the same---Complainant had thrown a wide net to involve all male members of the family of accused in the commission of the crime---Question as to what role was performed by the accused during the incident was yet to be ascertained during trial---Question of vicarious liability of accused and sharing of common intention in the incident could not be decided at bail stage as the same needed evidence---Prosecution witnesses had also narrated mere presence of accused at the spot in their statement sunder S. 161, Cr.P.C.---Accused was granted bail accordingly.

Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and others 2012 SCMR 1945; Dhani Bux and others v. The State and others 1989 SCMR 239; Arshad v. The State 2012 PCr.LJ 1749; Umar Hayat and others v. The State 2009 PCr.LJ 1058; Sher Ahmad and others v. Jan Faqir and others 2003 PCr.LJ 528 and Ghazi v. The State 2002 PCr.LJ 1532 distinguished.

Saeed Ullah Khan for Petitioner.

Ch. Muhammad Ishaque, DPG with Rai Talib Hussain, S.-I. for the State.

Manzar Abbas Khokhar for the Complainant.

2015 P Cr. L J 784

[Lahore]

Before Ijaz Ahmad, J

IBRAR HUSSAIN SHAH---Petitioner

versus

Syed WARIS SHAH and another---Respondents

Writ Petition No. 1866 of 2013, decided on 6th February, 2014.

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

----Ss. 200, 202, 203, 366, 369, 403 & 561-A---Constitution of Pakistan, Arts.13(a) & 199---Constitutional petition---Summoning a person in complaint case---Altering of judgment, double jeopardy---Quashing of order---Scope---Maxim: "nemo debet bis vexari pro una et eadem causa"---Applicability---Scope---Autre fois acquit, rule of Prerequisites---Petitioner in his constitutional petition had impugned order passed by the courts below, whereby he was summoned in a complaint case, and his revision petition was dismissed---Earlier, complaint filed by respondent/complainant was dismissed on the ground of lack of jurisdiction of Anti-Terrorism Court---On filing second complaint by the respondent, Magistrate concerned summoned the petitioner to face the trial---Revision petition filed against order of the Magistrate, having been dismissed by the Additional Sessions Judge, petitioner had filed present constitutional petition---Article 13(a) of the Constitution and S.403, Cr.P.C., and the maxim "nemo debet bis vexari pro una et eadem causa" (no person should be twice disturbed for the same cause), was not attracted in the case; because, order passed under S.203, Cr.P.C., being not a judgment in the terms of S.366, Cr.P.C., impugned order passed in second complaint was not offended by the provision of S.369, Cr.P.C., which prohibited the alteration of a judgment---Pre-requisites for attracting the rule of "autre fois acquit" were that there must have been a trial of accused for offence charged against him; that trial must have been by a court of competent jurisdiction; that there must have been judgment or order of acquittal; that parties in two trials must be the same; and that facts in issue in the earlier trial must be identical with what was sought to be agitated in the subsequent trial, which were non-existent in the case because whatever had taken place earlier, was not a trial---In the present case, it being only a second complaint, which had not exceeded the reasonable limit of repetition, same was not incompetent---Concealment of the filing and dismissal of the earlier complaint, would not affect the merits of the case---Order in the first complaint having been passed by the court, which in its own opinion lacked the jurisdiction, impugned order passed by the courts below summoning the petitioner, were in conformity with law---Constitutional petition was dismissed, in circumstances.

Emperor v. Chinna Kaliappa Gounden and another ILR 1905 (Vol. XXIX) AC 126; Dhana Reddy v. Emperor AIR 1930 Rangoon 156; Namdeo Ganpat Phulmali v. Emperor AIR (31) 1944 Nagpur 327; Prithvi Bhagat and another v. Birju Sada AIR 1962 Patna 316 (V. 49 C 82); Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121; Dr. S. S. Khanna v. Chief Secretary, Patna and another AIR 1983 SC 595; Atta Muhammad and others v. Iqrar Ahmad and another 1991 PCr.LJ 274; Manzoor Ahmed v. The State PLD 2003 Kar. 97; Saeed Ahmed v. Abdul Shakoor and another 2005 PCr.LJ 1631; Ahmed Din v. ASJ and others 2011 YLR 428 and Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484 ref.

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

----Ss. 200, 202, 369 & 403---Constitution of Pakistan, Art.13(a)---Double jeopardy---Perpetual succession of trials and prosecution would have resulted in a constant jeopardy, if not to a person proceeded against, at least to the court, made to undertake the ritual---Court could not be made to hear and rehear the successive complaint of the same complainant about the same episode till the complainant lived or accused died---Exception---Accused though was not before the court at the time of recording the preliminary statements of the complainant and of the witnesses under Ss.200 & 202, Cr.P.C., and he was not being tried, yet that process, if allowed to be repeated infinitely, would result in consumption of the court's time by the same person, a time that was to be equitable amongst all craving for the resolution of their disputes---Although a second complaint, or the successive complaints about the same episode at the instance of the same person, or at the instance of another person competent to file a complaint, unless the earlier one had ended in acquittal or conviction, were not barred by law, yet that endless succession had to be bridled with reasonableness; and there had to be exceptional circumstances for filing and entertaining the successive complaints; for instance where the previous order was passed on the incomplete record, or on a misunderstanding about the nature of the complaint, or the order passed in the previous complaint refusing to summon accused was manifestly absurd, unjust or foolish, or where some facts which could not, even with reasonable diligence be brought before the court were being put forth in the second complaint.

Malik Waheed Anjum for Petitioner.

Syed Zaheer Hassan for Respondents.

Shahid Mehmood Abbasi, A.A.-G. for the State.

Date of hearing: 3rd February, 2014.

2015 P Cr. L J 797

[Lahore]

Before Manzoor Ahmad Malik, J

ISHTIAQ MASIH alias BOBI---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 304-J of 2009, heard on 9th October, 2014.

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

----Ss. 302(b) & 377---Qatl-i-amd, sodomy---Appreciation of evidence---Benefit of doubt---Inordinate delay of eight days in reporting the matter to the Police, had not been satisfactorily explained---Such delay cast serious doubt about the veracity of prosecution case---Contradiction was between the statements of complainant and prosecution witness---Complainant made material improvements before the Trial Court during his cross-examination, to strengthen the prosecution case---Making of extra-judicial confession before the prosecution witnesses was not worthy of reliance, because at relevant time, no evidence was available against accused regarding his involvement in the crime; and none of the witnesses of extra judicial confession, enjoyed any social status/authority prompting accused to make such confession before them---Recovery of dead body of the deceased, was not effected at the instance of accused, but was recovered from a deserted place, prior to the registration of the case---Said place of recovery was never owned by accused---Alleged recovery of Chhuri at the instance of accused, was not helpful for the prosecution, because same was not stained with blood, and report of Chemical Examiner and Serologist was not available on the record in that respect---Prosecution had not been able to prove its case against accused through confidence inspiring and straightforward ocular account; and case of prosecution was doubtful in nature---Accused, in circumstances, was entitled to benefit of doubt, not as a matter of grace, but as of right---Conviction and sentence awarded to accused by the Trial Court, were set aside---Accused was acquitted of the charge of commission of sodomy and murder of deceased extending him benefit of doubt and was released, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Medical evidence---Scope---Medical evidence, at the most was a supporting piece of evidence, because it could confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of the assailant.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

Naveed Saeed Khan appointed as Defence Council at State expense for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Complainant in person.

Date of hearing: 9th October, 2014.

2015 P Cr. L J 820

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

SAIF ULLAH and 2 others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. 30 and Murder Reference No.23 of 2009, heard on 11th April, 2013.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Circumstantial evidence---No direct evidence was available in the case and prosecution case hinged on the circumstantial evidence---Utmost care and caution was required for reaching at a just decision in the case---Every circumstance should be linked with each other and it should form such a continuous chain that its one end should touch the dead body and other to the neck of accused---If any link in the chain was missing, then its benefit must go to accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188 and Asadullah and another v. The State 1999 SCMR 1034 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Occurrence was unseen, which took place in the month of December at 5-00 a.m.---Complainant was not an eye-witness of the occurrence and he did not name any accused in his "Fard Biayan" on the basis of which FIR was registered---Complainant got recorded his supplementary statement, wherein he implicated accused persons on the basis of information imparted to him by a prosecution witness who was given up---Both witnesses of Waj-takkar, were not the residents of the village, where occurrence took place, but were residents of other villages and could not give plausible reason for their presence at the spot at the relevant time; it was not safe to rely upon the evidence furnished by said Waj-takkars---No evidence of extra judicial confession was available against one of the accused persons---Prosecution had, however, produced the evidence of extra judicial confession against other two accused persons, through prosecution witnesses who were residents of different villages---Prosecution witness before whom said accused had allegedly made extra judicial confession, was not holding any authority or office---Evidence of extra judicial confession was a weak type of evidence and in the present case same being not trustworthy, could not be relied upon---Motive as alleged by the prosecution had not been proved---Occurrence being unseen, and no details regarding the manner in which the offence was committed was mentioned by the witnesses of extra judicial confession there was no need to discuss the medical evidence---No report of Forensic Science Laboratory was available on record qua gun pump-action allegedly recovered from the possession of accused---No report was on record in respect of Kalashnikov allegedly recovered from the accused person---Evidence of Waj-takkar, extra judicial confession and motive, having been disbelieved, accused persons could not be convicted merely on the basis of recoveries which were only corroborative piece of evidence---Accused could not be convicted merely on the basis of his abscondence---Present case was replete with number of circumstances, which had created doubt about the prosecution story---Prosecution having failed to prove its case against accused persons beyond the shadow of doubt, their conviction and sentences were set aside, and they were acquitted from the charges and were released, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javed v. The State 2009 SCMR 166 ref.

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 rel.

(c) Criminal trial---

----Medical evidence---Medical evidence was a type of supporting evidence, which could confirm the ocular account with regard to receipt of injury, nature of injury, kind of weapon used in the occurrence, but it would not identify the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(d) Criminal trial---

----Benefit of doubt---If there was a single circumstance which created doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Muhammad Irfan Malik for Appellants.

Appellant No.3 present on bail.

Arshad Mehmood, Deputy Prosecutor-General for the State.

Aurangzeb Marl and Miss Najma Parveen for the Complainant.

Date of hearing: 11th April, 2013.

2015 P Cr. L J 865

[Lahore]

Before Sagheer Ahmad Qadri and Ali Baqar Najafi, JJ

FAZAL QADIR---Appellant

versus

JAMSHED ELLAHI BUTT and 2 others---Respondents

Criminal Appeal No. 277-ATA of 2008, decided on 30th October, 2012.

Penal Code (XLV of 1860)---

----S. 365-A---Kidnapping or abducting for extorting property, valuable security etc.---Appeal against acquittal---Appreciation of evidence---Allegations against the accused persons were that they abducted the complainant and his brother for ransom---Trial Court had properly taken notice of the material discrepancies regarding the prosecution story as to abduction and payment of ransom---FIR was lodged after about one year of the occurrence without giving any plausible explanation---None of the prosecution witnesses admitted to have paid ransom money on the demand of the accused---Investigating Officer admitted in cross examination that according to his investigation the story of the FIR was found concocted---Neither place of confinement of both the victims was pointed out nor it had come on record that the house was guarded by the accused at the time of raid and it did not appeal to reason to a person of ordinary prudence that accused could take the risk of disclosure of particulars of the place, where the abductees were detained by them, to the prosecution witnesses and giving them sufficient time to contact outside for requisitioning ransom money and come back to the same place to pay them---Prosecution witnesses had not stated all that was true at the trial, so their veracity and integrity was not above board---Recovery did not advance the case of the prosecution and if the recovery was proved against the accused, the same would not be sufficient to connect them with the allegation of abduction for ransom as the evidence of recovery used for corroboration of the main allegation, which the prosecution had failed to prove and what to say of other---Unless it could be shown that the judgment of the lower court was perverse or that such was completely illegal and no other conclusion could be drawn except the guilt of the accused or there had been misreading of evidence resulting in mis-carriage of justice, the acquittal order could not be interfered with whereby an accused earned double presumption of innocence---Prosecution had not been able to bring on record adequate incriminating evidence to the extent of the accused-respondents that might connect them with the crime---Trial Court after applying its judicious mind acquitted the accused keeping in view the manner in which the occurrence had been narrated by the prosecution---Once judgment of acquittal was passed by a competent court of jurisdiction after proper and correct appraisal of evidence, the same could not be interfered with merely on the ground that on re-analysis of the evidence another view could be taken---Appeal was dismissed in limine.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 and Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 rel.

Muhammad Junaid Akhtar Khokhar for Appellant.

Muhammad Usman, Deputy Prosecutor-General for Respondents.

2015 P Cr. L J 880

[Lahore]

Before Mahmood Ahmed Bhatti, J

Mst. SHAKILA BIBI---Petitioner

versus

SHO POLICE STATION CHOBARA, DISTRICT LAYYAH and another---Respondents

Criminal Miscellaneous No. 12-H of 2014, decided on 24th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of minors---Petitioner who was mother of minors, had filed petition for their recovery from their father---One of the minors, daughter aged 9 years, appeared to be quite intelligent, was not attracted and drawn to petitioner/mother and denied all the allegations made by the petitioner---Daughter even expressed her hatred and aversion towards the mother---Other minors, also appeared well fed and well-clad; they also did not take glance at the mother/petitioner, and appeared to be attached to the father/ respondent---All such things created suspicion in the eyes of the court---Emotions apart, it stood established that there was no truth in the assertions made by the petitioner/mother that minors were removed forcibly by father---Petitioner had admitted that she was married to another person---Wish of the petitioner could not be granted for the reasons; that petitioner herself abandoned her minor children almost a year ago, and never attempted to establish contact with them, which reflected adversely on her conduct; that minors appeared to be fond of their father and their paternal grandmother; that minors hardly recognized the petitioner as their mother; that if they were wrenched apart; both their education and health would be seriously affected; that, if the custody of minor aged 3 years was handed over to the petitioner, he would be brought up separately from his siblings, thereby depriving him of the company of his elder sister and other minor brother; that, it was never considered desirable that one child was separated from his/her siblings to be reared alone; and that there were serious questions as to how the petitioner would maintain minor son as she had no source of any income; and if she had to sue respondent for maintenance of minor son, it was better that he be allowed to be brought up by respondent/father as before.

Rana M. Nazir Saeed for Petitioner.

Ch. Muhammad Akbar, D.P.-G.

Waseem Sarwar Khan and Muhammad Shafique Randhawa for Respondent No.2.

2015 P Cr. L J 904

[Lahore]

Before Shahid Hameed Dar, J

WAQAR AHMAD and another---Petitioners

versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7334-B of 2013, decided on 21st June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 380, 457 & 411---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Pending civil litigation between parties over property---Statements of witnesses of the occurrence doubtful---Effect---Accused persons allegedly broke into complainant's shop at night and stole certain items and documents---Complainant was not an eye-witness of the occurrence and was informed about the same the next morning by two witnesses, who stated in their statements under S. 161 , Cr.P.C., that they witnessed the accused persons committing the crime (during the night), however they did not mention the time of occurrence or reason as to why they did not inform the complainant well in time---Both the alleged witnesses of the occurrence stated in their statements under S. 161, Cr.P.C. that accused persons got into the shop by making a hole in the rear wall, however interestingly house of one of the said witnesses was adjacent to the rear wall of the shop---Such circumstances reflected (adversely) on the claim of the witnesses that they witnessed the accused persons committing the crime---Civil litigation qua shop in question was pending between the parties---Both parties, in their own right, had strong claims over ownership and possession of the shop---Case was one of further inquiry---Ad interim pre-arrest bail already granted to accused persons was confirmed in circumstances.

Sultan Mehmood Dar for Petitioners.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab for the State.

Muzafar Ali for the Complainant.

Ghafoor SI with record.

2015 P Cr. L J 923

[Lahore]

Before Zafarullah Khan Khakwani and Ibad-ur-Rehman Lodhi, JJ

MAQSOOD YAMEEN---Petitioner

versus

R.P.O. MULTAN and others---Respondents

Writ Petition No. 10748 of 2014, decided on 29th October, 2014.

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

----Ss. 7 & 19---Penal Code (XLV of 1860), Ss. 302 & 324---Constitution of Pakistan, Art. 199---Constitutional petition---Word 'Government' appearing in S. 19 of Anti-Terrorism Act, 1997---Connotation---Joint Investigation Team, constitution of---Competence---Petitioner was accused of committing terrorism, qatl-i-amd and attempt to qatl-i-amd---Superintendent of Police (Investigation) constituted Joint Investigation Team to investigate the case---Validity---Within the meaning of S.19 of Anti-Terrorism Act, 1997, only Secretary, Home Department of Provincial government was authorized to pass order for constituting a Joint Investigation Team in case registered under the provisions of Anti-Terrorism Act, 1997---High Court declared order passed by Superintendent of Police (Investigation) to be illegal and without lawful authority and the same was set aside, as a result of which investigation carried out by Joint Investigation Team was also declared to be without lawful authority---High Court directed that investigation would be carried out by a police officer not below the rank of Inspector as per mandate of section 19 of Anti-Terrorism Act, 1997, from the date when FIR was registered or by a Joint Investigation Team constituted by Government under S. 19 of Anti-Terrorism Act, 1997---Petition was allowed in circumstances.

(b) Maxim---

----A communi observantia non est recedendum---Meaning---When law requires a thing to be done in a particular manner, it has to be done in that manner and not otherwise.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61; Tehsil Nazim, T.M.A. Okara v. Abbas Ali and 2 others 2010 PLC 259 and Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others 2012 PLC (C.S.) 772 rel.

(c) Void order---

----Subsequent orders---Status---If on the basis of a void order subsequent orders are passed or proceedings are taken the same must fall to the ground---Such subsequent orders or proceedings have a little legal foundation as void order on which they are founded.

Sardar Mehboob and Chaudhry Faqir Muhammad for Petitioner.

Aurang Zeb Khan, Assistant Advocate-General with Iftikhar Ahmad D.S.P. and Muhammad Yaqoob S.-I.

Ch. Qaiser Abbas for Respondent No.7.

Zia-ur-Rehman Randhawa for Respondents Nos.7 to 13.

2015 P Cr. L J 965

[Lahore]

Before Mazhar Iqbal Sidhu and Syed Muhammad Kazim Raza Shamsi, JJ

ABDUL KHALIQ and others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. 373-J and Murder Reference No. 7 of 2010, decided on 24th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt--- Occurrence took place at about 11-30 p.m. at midnight and no source of light was mentioned in the FIR, nor had been brought before the court through the statements of the prosecution witnesses---Night being cloudy and murky, whenever there was murkiness/darkness, identity of a person remained a serious question---Prosecution was unable to bring on record the immediate motive of the occurrence---Male prosecution witnesses, during the trial, tried to adjust their statements with the medical evidence, but could not succeed---Lady Doctor had stated that there were seven injuries on the body of the deceased, whereas ocular testimony had shown only one---Locales of the injuries had not been found correctly narrated by the prosecution witnesses---Said inconsistency having been proved, spoiled the prosecution case---Enimity and their being interested towards accused persons, relationship of the prosecution witnesses with the deceased was vivid through the record---Female prosecution witness being influenced by prosecution witnesses (her relatives), had made a tutored statement---Statement of said witness was not corroborated by medical evidence---Unabridgeable incoherence between the medical and ocular account made the prosecution case doubtful benefit of which had to be resolved in favour of accused persons---Report issued by the Forensic Science Laboratory with regard to allegedly recovered pistol, though was positive, but same was of no consequence, because no crime empty was collected from the spot by the Investigating Officer---Co-accused did not cause any injury to the deceased, and he had been involved on account of propinquity with accused---Prosecution case was replete with doubts and it failed to prove its case against accused persons beyond any shadow of reasonable doubt---Conviction and sentence of both accused persons, was set aside and they were acquitted of the charges imputed against them by extending them benefit of doubt.

Basharat Ali Shah and others v. The State 1981 SCMR 1243 ref.

Mudassar Altaf Qureshi for Appellants.

Mehar Ahmad Raza for the Complainant.

Malik Muhammad Jaffar, D.P.-G. for the State.

Date of hearing: 24th September, 2013.

2015 P Cr. L J 979

[Lahore]

Before Mehmood Maqbool Bajwa and Zafarullah Khan Khakwani, JJ

HASIB AHMAD RASHID---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 4 others---Respondents

Writ Petitions Nos. 21111, 22063 and 24320 of 2014, decided on 3rd March, 2015.

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

----S. 9(a)--- Constitution of Pakistan, Art. 199---Constitutional petition--- Bail, grant of---Case of further inquiry---Evaluation reports---Presumption---National Accountability Bureau arrested petitioner on the allegation that he prepared bogus evaluation reports on the basis of which bank advanced finance facility to principal accused---Plea raised by petitioner was that reports were not prepared on the request of bank for the purposes of advancing of finance facility---Contention of authorities was that since the reports were used by principal accused in order to procure loan, therefore, it would be presumed that petitioner was also his associate---Validity---High Court declined to share and endorse the opinion of authorities--- Evaluation reports were prepared by firm of petitioner on 25-3-2005, at the request of company of principal accused made on 19-3-2005---During the course of investigation no such material was ever collected by investigating officer to suggest that bank had ever made request to petitioner to evaluate property so that proposal of loan could be sanctioned in favour of principal accused---Reports did not mention that principal accused ever intimated petitioner that evaluation was required for the purpose of advancement of loan---Reports were issued for the privilege of the company of principal accused and their legal advisors which fact by itself was not sufficient to suggest malice on the part of petitioner or give impression that the reports were prepared by petitioner to facilitate sanction of loan---Case of petitioner required further probe entitling him to get premium of post-arrest bail---Petition was allowed in circumstances.

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

----S. 9(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Case of further inquiry---Introduction of Bank account---National Accountability Bureau arrested petitioner on the allegation that he was regional head of Bank and introduced principal accused as account holder and marked two applications of principal accused to his subordinates---Validity---Introduction of a particular person as account holder by itself was not sufficient to suggest conscious attempt on the part of petitioner to facilitate commission of offence---Except marking two applications to his subordinates and introduction of principal accused as ordinary account holder, there was no other material against petitioner which by itself would be sufficient to suggest reasonable grounds regarding involvement of petitioner in the offence---High Court admitted the petitioner to bail after arrest---Petition was allowed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner (in Writ Petitions Nos. 21111 and 22063 of 2014).

Shahid Bashir Panno for Petitioner (in Writ Petition No.24320 of 2014).

Syed Faisal Raza Bukhari, ADPG for NAB along with Mian Nadeem Ahmad, Deputy Director/I.O.

2015 P Cr. L J 995

[Lahore]

Before Miss Aalia Neelum, J

RIASAT ALI and another---Appellants

versus

The STATE and others---Respondents

Criminal Appeal No.21 and Criminal Revision No.52 of 2013, heard on 9th September, 2014.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of one hour and twenty minutes in reporting the matter to the Police, was not explained---Preliminary inquiries, deliberation and consultation on the part of the complainant, could not be ruled out prior to the registration of the FIR in circumstances---Incident did not take place in the manner, as alleged by the prosecution---Duration between the injury and death, contradicted the prosecution case---Prosecution case, as given in the complaint by the complainant was in conflict with the medical evidence---Said conflict had created doubt about the prosecution case---Whenever conflict between ocular and medical evidence, was found, accused was acquitted by extending the benefit of doubt---Best possible evidence which was the statement of father of the complainant, was withheld by the prosecution---Prosecution witness and shopkeepers at the site, were most relevant witnesses, but had neither been produced before the Police nor at the trial---Prosecution case, in circumstances, was hit by Art.129(g) of Qanun-e-Shahadat, 1984---Non-handing-over the prescription of doctor, or receipts relating to medical treatment of deceased led to the conclusion that witness was not present at the spot at the time of occurrence---Presence of the complainant at the place of occurrence being doubtful, no reliance could be placed upon his evidence---Accused was not afforded an opportunity to explain the vital circumstances of giving his arrest by himself along with pistol---Crime empties and pistol .30 bore, allegedly produced before the Investigating Officer by accused, were sent to the Office of Forensic Science Laboratory, ten days after the occurrence, and five days after arrest of accused---Such evidence lost its value---Prosecution, had to stand on its legs and could not take any benefit of weakness of defence plea---Surmises and conjectures, could not take place of proof---Prosecution had failed to prove the guilt of accused beyond any reasonable doubt to warrant conviction---Benefit of doubt was to be extended in favour of accused---Conviction and sentence, awarded to accused by the Trial Court, were set aside, accused was acquitted of the charge, and was directed to be released, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Lal Khan v. The State 2006 SCMR 1846; Mst. Shazia Parveen v. The State 2014 SCMR 1197; Ali Sher and others v. The State 2008 SCMR 707 and Shera Masih and another v. The State PLD 2002 SC 643 ref.

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

----Art. 38---Admission---Admissibility---Scope---Admission by accused to the police for having committed the offence with some specific weapon was not admissible in evidence as hit by Art. 38 of Qanun-e-Shahadat, 1984.

Syeda B.H. Shah for Appellants.

Muhammad Usman, Deputy Prosecutor-General for the State.

Sh. Muhammad Yaqoob for the Complainant.

Date of hearing: 9th September, 2014.

2015 P Cr. L J 1007

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD SARWAR and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.1386, 1387, 270-J of 2008 and Murder Reference No. 5 of 2009, heard on 25th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 396, 148 & 149---Qatl-i-amd, dacoity with murder, rioting, common object---Appreciation of evidence---Benefit of doubt---Accused persons, neither were nominated in the FIR, nor their description was mentioned in the FIR; and no identification parade was conducted---Case of prosecution was that seven unknown accused persons participated in the occurrence and resorted to firing at the deceased, but there was only one firearm injury on the person of deceased as per medical evidence---Three co-accused who were also assigned the role of making fire at the deceased had been acquitted by the Trial Court and their acquittal had attained finality as no appeal was filed against said acquittal---Role attributed to accused persons, was similar to that of acquitted co-accused---Recoveries of .12 bore guns at the instance of two accused persons, were of no avail to the prosecution as no report of Forensic Science Laboratory about wedding of any empty with the said guns was available on record---Nothing was recovered from third accused during investigation---No specific identification mark or denomination of any currency Notes was mentioned in the FIR---No specific identification mark on allegedly recovered currency notes, had been mentioned in the recovery memo.---Recovery of cash amount of Rs.150 only which was easily available with almost every person, at the instance of accused, and was of no avail to the prosecution---No independent corroboration was found against accused persons---Case of accused persons was not distinguishable from the case of acquitted co-accused---Prosecution, in circumstances, had failed to prove its case against accused persons beyond any shadow of doubt---Convictions and sentences awarded to accused persons, by the Trial Court were set aside extending them benefit of doubt---Accused were acquitted from the charges levelled against them and they were released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

Rao Muhammad Naeem Hashim, Sikandar Zulqarnain Saleem and Rao Javed Khurshid for Appellants.

Ms. Fouzia Sultana Advocate/defence counsel at State expenses for the Appellant (in Criminal Appeal No. 270-J of 2008).

Arshad Mahmood, Deputy Prosecutor-General for the State.

Maqbool Ahmad Bhatti and Muhammad Shoaib Bhatti for the Complainant.

Dates of hearing: 23rd and 25th April, 2013.

2015 P Cr. L J 1032

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

MUHAMMAD ASLAM and others---Appellants

versus

The STATE---Respondent

Criminal Appeal No. 65 and Murder Reference No. 5 of 2011, heard on 1st July, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Unexplained delay in registration of FIR---Both the accused were convicted by Trial Court and sentenced to death---Validity---FIR was lodged with an unexplained delay of about six hours from time of occurrence at midnight which delay had cast doubt in prosecution story and affect adversely to prosecution---Delay had great significance and it could be attributed to consultation, taking instructions and calculatedly preparing report keeping names of accused open for roping in such persons whom ultimately prosecution could wish to implicate---Prosecution failed to bring home guilt of accused persons to the hilt and Trial Court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise was full of material contradictions---High Court extended salutary principle of benefit of doubt in favour of accused persons, their conviction and sentence was set aside and they were acquitted of the charge---Appeal was allowed in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Irshad Ahmed v. The State 2011 SCMR 1190 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Witness---Credibility---Principle---Mere fact that a witness is closely related to accused or deceased or he is not related to either party, is not the sole criteria to judge his independence or to accept or reject his testimony---True test is whether evidence of witness is probable and consistent with circumstances of case or not.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm ocular evidence with regard to seat of injury, nature of injury, kind of weapon used in occurrence but it does not connect accused with commission of crime.

Altaf Hussain and others v. Fakhar Hussain and others 2008 SCMR 1103 rel.

M. Sharif Bhatti for Appellants.

Ch. Asghar Ali Gill, D.P.-G. for the State.

Ch. Haq Nawaz for the Complainant.

Date of hearing: 1st July, 2014.

2015 P Cr. L J 1050

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ASHRAF---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.1468-B of 2014, decided on 7th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Negotiable Instruments Act (XXVI of 1881), S. 84---Dishonoured cheque---Pre-arrest bail, grant of---Negotiable instrument---Delayed presentation of cheque---Non-filing of recovery suit---Cheque in question was issued on 25-2-2011 and was presented for payment on 11-11-2013, when it was bounced due to insufficient funds---Plea raised by accused was that FIR was registered with mala fide intention---Validity---Cheque in question was a negotiable instrument which was presented to bank after lapse of about 30 months---Cheque was required under S.84 of Negotiable Instruments Act, 1881, to be presented for payment within a reasonable time of its issue---Dishonest intention in issuing a cheque was sine qua non to attract offence under S. 489-F, P.P.C., which was yet to be established after having recourse to evidence---No date, time or place of alleged payment of Rs.8 million by complainant to petitioner was mentioned in FIR---Complainant did not file any suit against accused for recovery of disputed amount---Cheque was in possession of complainant, therefore, no recovery was pending against accused---Offence under S. 489-F, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.---Plea of malice raised by accused could not be discarded outrightly---Object of pre-arrest bail was to save innocent persons from humiliation, harassment and incarceration on the basis of false implication--- Pre-arrest bail was allowed in circumstances.

Mian Allah Ditta v. The State and others 2013 SCMR 51 rel.

Tahir Shehzad Kamboh for Petitioner.

Ch. Muhammad Jahangir, Deputy Prosecutor-General along with Muhammad Ali SI for the State.

Malik Tariq Aziz for the Complainant.

2015 P Cr. L J 1066

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Mian TARIQ AZIZ---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No. 15353-B of 2013, decided on 23rd June, 2014.

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

----S. 498---Penal Code (XLV of 1860), S.462-C---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss.2(iv), (xi), (xii), (xxxii), 22, 25 & 29---Explosives Act (IV of 1884), Ss.3 & 4---Gas (Theft Control and Recovery) Ordinance (II of 2014), S.5(7)---Tampering with auxiliary or distribution pipelines of petroleum, undertaking any regulated activity including stealing petroleum in contravention of Oil and Gas Regulatory Authority Ordinance, 2002---Pre-arrest bail, refusal of---Quashment of FIR, application for---Accused contended that Oil and Gas Regulatory Authority Ordinance, 2002 which was a special law would prevail over Penal Code, 1860, a general law and that after lapse of Gas (Theft Control and Recovery) Ordinance, 2014, proceedings under S.462-C, P.P.C. were illegal---Validity---Gas (Theft Control and Recovery) Ordinance, 2014 having been extended for a further period of 120 days, was still holding the field---Preamble of any law was key to ascertain the intention of legislature---Oil and Gas Regulatory Authority Ordinance, 2002 was promulgated to protect public interest and provide effective and efficient regulations for petroleum industry---Under Ss.22 and 23 of the Oil and Gas Regulatory Authority Ordinance, 2002 regulated activity was confined to the supply of natural gas, process of transmission, distribution and sale---"Licensee" and "consumer" were two different terms---Accused was a consumer but he wanted to gain the status of licensee in order to get benefits of various provisions of the Oil and Gas Regulatory Authority Ordinance, 2002---Section 25 of the Oil and Gas Regulatory Authority Ordinance, 2002 related to/applied to any "regulated activity" and a licensee could be held responsible for violation of any such offence including the stealing of petroleum---Consumer could not take the plea that applicability of the provisions of the Oil and Gas Regulatory Authority Ordinance, 2002 to his case barred application of Penal Code---Theft of gas was a pilferage of public property---Crime allegedly committed by accused was offence against entire society---Accused alleged political victimization but did not point out any political interference with the help of material available on record---Accused was connected with the crime which fell within the prohibitory clause of S.497, Cr.P.C.---In the absence of mala fides of prosecution, accused was not entitled to the extraordinary benefit of pre-arrest bail---Bail already granted was recalled.

(b) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 25---Application of S. 25, Oil and Gas Regulatory Authority Ordinance, 2002---Section 25 of the Oil and Gas Regulatory Authority Ordinance, 2002 applied to any 'regulated activity' and a licensee could be held responsible for violation of any such offence including the stealing of petroleum.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Sarfraz Ahmed Khatana, Deputy Prosecutor-General Punjab for the State with Asif, Inspector/I.O. with record.

Rana Zia-ul-Islam Manj for the Complainant-Gas Department.

Mian Irfan Akram, Deputy Attorney-General for Pakistan.

Muhammad Nasir Chohan, Assistant Advocate-General Punjab.

Zaheer Iqbal, XEN (SNGPL) and Bilal Asghar, Superintendent Engineer with Record.

2015 P Cr. L J 1087

[Lahore]

Before Shezada Mazhar, J

MUHAMMAD IJAZ---Petitioner

versus

The STATE and 4 others---Respondents

W. P. Nos. 11938, 11941 and 11942 of 2014, decided on 5th September, 2014.

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

----S. 11 & Fourth Sched.----Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention--- Detenus, recovery of---Judicial review---"Satisfaction"---Sufficient ground---Scope---District Co-ordination Officer directed detention of detenus on the ground that their activities were pre-judicial to public peace and tranquility---Validity---Liberty of a citizen, save in accordance with law, had been protected by the Constitution---High Court being custodian of Constitution had to protect and safeguard fundamentally guaranteed rights---Impugned orders were non-speaking having no reasons justifying the detention of detenus nor there was any material on the record---Said orders even did not touch the pleas raised by the detenus---Edifice of satisfaction was to be built on the foundation of evidence as conjectural presumption could not be equated to that of "satisfaction" which was subjective assessment and there could be no objective satisfaction---If High Court had come to a conclusion that grounds mentioned in the detention orders were not supported by sufficient material then there was nothing stopping the High Court from exercising the power of judicial review---Material should be of such a nature by examination of which a man of common prudence must form his opinion that detention order had been rightly passed---Detaining authority was required to establish each and every ground of detention on the basis of sufficient material to justify its order---If material on any one of such ground was missing then the whole detention order would lose its sanctity and would be liable to be set aside---No ground whatsoever had been mentioned by the detaining authority while extending the detention order and impugned orders were clear indicative of the fact that said authority had neither examined the material nor applied its independent judicial mind---None of the detenue had been enlisted in the Fourth Schedule of Anti-Terrorism Act, 1997---Where any information was received that a person was an activist, office bearer or an associate of an organization, or in any way had concern or suspected to be concerned with such organization or affiliated with any group or organization suspected to be involved in terrorism or sectarianism then the name of such person could be placed in the Fourth Schedule of Anti-Terrorism Act, 1997---If some material was available with the Government against the detenus then their names should have been placed in the Fourth Schedule of Anti-Terrorism Act, 1997 and would be required to execute a bond so that their activities could be kept under watch---Unless and until any such order placing their names in the Fourth Schedule of Anti-Terrorism Act, 1997 was passed it could not be said that they were involved in sectarian activities---Allegations against the detenus could be checked more appropriately under S. 11 of Anti-Terrorism Act, 1997---Sufficient grounds must exist which would firstly satisfy the conscious of the detaining authority and such satisfaction might consist upon such a material on the basis of which even a man of common prudence would have no other option except to form an opinion tilting toward the detention order---Solid material should be collected by the agencies to establish sufficient ground to pass a detention order---Authorities must have a recourse to S. 154 of Criminal Procedure Code, 1898 before passing detention order when allegations levelled against the detenus in the said order had constituted a criminal offence under Anti-Terrorism Act, 1997, Pakistan Penal Code, 1860 or any other law---Most of the allegations levelled against the detenus were of criminal offences in the present case---Person who had received an information with regard to involvement of a person in an offence covered by Anti-Terrorism Act, 1997 and he believed or suspected that someone had committed an offence under the said Act then he was under a legal compulsion to disclose such belief or suspicion to the police officer---Where Anti-Terrorism Act, 1997 had comprehensively dealt with almost all eventualities then first option to be exercised by the Government should be to set the provisions of said Act into motion through a process detailed in the same itself and detention order being an extreme step taking away the liberty of a person should be used only as a last resort---Priority should be given to book the persons in criminal cases under Anti-Terrorism Act, 1997 or any relevant law if their activities were offences under such laws---Names of detenue were neither placed in Fourth Schedule of Anti-Terrorism Act, 1997 nor they were proceeded against under the said Act for committing criminal offences---No sufficient material was on record to justify the impugned detention orders---Detention orders were set aside and detenus were ordered to be released forthwith if not required in any other case---Constitutional petitions were accepted in circumstances.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Muhammad Ayaz Khan and 6 others v. The District Magistrate Batagram and another 1995 PCr.LJ 587 and Gulzar Ahmad v. District Magistrate and another 1998 PCr.LJ 1790 rel.

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

----S. 154---Registration of FIR---Scope---Section 154 of Criminal Procedure Code, 1898 only required laying an "information" about the commission of a cognizable offence---"Information" was an initial stage and first step to set the law into motion by registration of a criminal case where after such "information" might be probed into and only then it could be concluded whether such "information" was true so as to lead towards indictment or not.

(c) Words and phrases---

----"Information"---Meaning.

Black's Law Dictionary Sixth Edition (Centennial Edition (1891-1991) rel.

(d) Words and phrases---

----"Sufficient"---Meaning.

Black's Law Dictionary Sixth Edition (centennial Edition (1891-1991) rel.

Rana Zulfiqar Ali Sadiq for Petitioner.

Rana Muhammad Hussain, Assistant Advocate-General and Dr. Sajid Mahmood Chohan, District Coordination Officer, Sahiwal for Respondents.

Date of hearing: 5th September, 2014.

2015 P Cr. L J 1103

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

IFTIKHAR HUSSAIN---Petitioner

versus

SENIOR SPECIAL JUDGE ACE and 3 others---Respondents

W.P. No. 22950 of 2014, decided on 28th August, 2014.

(a) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.448, 395, 511, 109, 161 & 162---Prevention of Corruption Act (II of 1947), S.5---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.8---West Pakistan Anti-Corruption Establishment Rules, 1985, Rr.6, 7 & 8---House-trespass, dacoity, attempt to commit offences, abetment, taking illegal gratification---Constitutional petition---Quashing of FIR---Contention of petitioner was that under R.8 of the West Pakistan Anti-Corruption Establishment Rules, 1985, registration of FIR against the government servant in respect of a scheduled offence, exclusively fell within the jurisdiction of Anti-Corruption Establishment and registration of FIR at the Police Station concerned, was without lawful authority---Validity---Initially, in the present case, FIR was not registered under the scheduled offences, but subsequently, when the order for transfer of the case was issued by the Special Judge, Anti-Corruption Court, case was transferred to the Anti-Corruption Establishment; and same was investigated by three different Investigating Officers of the Anti-Corruption Establishment---Provision of S.154, Cr.P.C. authorized an officer-in-charge of Police Station to record FIR, if information was conveyed to him which disclosed commission of a cognizable offence---Present FIR revealed the commission of cognizable offence---Provision of S.8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 provided that provisions of said Ordinance, were in addition and not in derogation to any other law for the time being in force---Rules 6, 7, 8 of the West Pakistan Anti-Corruption Establishment Rules, 1985, did not have overriding effect on provisions of S. 154, Cr.P.C.---Said Rules being subordinate legislation, could not control or override S.8 of West Pakistan Anti-Corruption Establishment Ordinance, or S.154, Cr.P.C.---Contentions of the petitioner seeking quashing of FIR, were misconceived---Challan being pending before the Trial Court, an appropriate alternate remedy was available to the petitioner under S.249-A, Cr.P.C.---Constitutional petition was dismissed.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Zulqar Hussain v. Tanvir Ahmad Gill, Admin Officer, SNGP and another 2014 PCr.LJ 779; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Muhammad Abbasi v. SHO Bhara Kahu and 7 others PLD 2010 SC 969 ref.

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

----Ss. 156, 157 & 204--- Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Cancellation of case by Magistrate---Order passed by a Magistrate regarding cancellation of case, or not concurring with the request for cancellation of case made by the Police, was administrative in nature---Such order could be challenged by constitutional petition---Magistrate seized of the report, while dissenting with the cancellation report, summoned the accused to face trial---First part of Magistrate's order would merge in his order regarding summoning of accused under S.204, Cr.P.C.---Such order was a judicial order---Judicial order could be assailed through a criminal revision only, and constitutional jurisdiction of High Court could not be invoked.

Bahadur and another v. The State and another PLD 1985 SC 62; Ahsan Ullah v. Illaqa Magistrate and 5 others 2014 YLR 113; Manzoor Ahmad v. Ahmad Yar and 3 others 1996 MLD 1867 and Haji Jamil Hussain v. Illaqa Magistrate Section 30, Multan and 7 others 2012 PCr.LJ 159 rel.

Muhammad Ahsan Bhoon and M. Irfan Arif Shaikh for Petitioner.

2015 P Cr. L J 1115

[Lahore]

Before Abdus Sattar Asghar, J

RASHID JAVED and another---Petitioners

versus

The STATE and 3 others---Respondents

Writ Petitions Nos.1722 and 1703 of 2013, heard on 13th May, 2014.

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

----S. 195(1)(c)---Prosecution for forgery---Procedure---Provision of S.195(1)(c), Cr.P.C. deals only with taking of cognizance of offence by Court and does not place any embargo upon reporting of alleged forgery to police for registration of FIR with regard to conducting of investigation in respect of such allegation.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 and Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892 rel.

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

----Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), S.195(1)(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Forged document submitted in Court---Accused filed suit for recovery of money against complainant and submitted Iqrarnama executed by complainant, who got FIR registered against accused alleging that Iqrarnama was a forged document---Accused raised the plea that FIR was registered in violation of S.195(1)(c), Cr.P.C.---Validity---Provisions of S.195(1)(c), Cr.P.C. were not applicable to cases in which forgery was allegedly committed before institution of suit or other proceedings in which forged document was produced or given in evidence---High Court declined to quash FIR as there was no legal infirmity or jurisdictional error in its registration---Petition was dismissed in circumstances.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Muhammad Ashfaq v. The State and 2 others PLJ 2010 Lahore 506; Ghulam Shabbir and 6 others v. The State and another 1990 PCr.LJ 97; Abdul Ghafoor v. The State 1984 PCr.LJ 381; Nusrat Hussain and others v. The State 1986 PCr.LJ 1218 and Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 distinguished.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178; Zulfiqar Ali v. Arshad Mahmood, Magistrate Ist Class Kabirwala and 2 others 2005 YLR 1316 and Haji M. Ismail v. The State and others NLR 1996 Criminal 140 Lahore ref.

Malik Atta Rasool Joyia for Petitioner (in W.P. No. 1722 of 2013).

Nemo for Petitioner (in W.P. No. 1703 of 2013).

Ameer Mustafa, A.A.-G. with Tahir ASI for the State.

Sharafat Mahmood for the Complainant.

Date of hearing: 13th May, 2014.

2015 P Cr. L J 1128

[Lahore]

Before Shahid Hameed Dar and Muhammad Yawar Ali, JJ

SHAUKAT ALI and 3 others---Appellants

versus

The STATE and another---Respondents

Cr. Appeal No. 1509 and Murder Reference No. 399 of 2011, heard on 23rd January, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(ii), 337-D, 337-F(iii), 148, 310 & 338-E---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Mudihah, Jaifa, causing Mutalahimah, rioting, compounding of Qisas, waiver or compounding of offence---Compromise was arrived at between accused, legal heirs of the deceased and injured prosecution witnesses pending proceedings---Major legal heirs of the deceased appeared before the Trial Court and made statements in terms that they had effected compromise with accused persons; and had forgiven them in the name of Almighty Allah by waiving their right of Qisas and Diyat and that they had no objection to the acquittal of accused persons of the charge of murder, on the basis of said compromise---Injured prosecution witnesses also appeared before the court and recorded their statements of compromise and forgiveness of accused without claiming any Badl-e-Sullah from accused persons---Court was satisfied with regard to the genuineness and voluntariness of compromise, finalized between the parties---Interest of the minor legal heirs of the deceased, had been meticulously and sufficiently safe-guarded through purchase of Defence Saving Certificates in their favour---Deputy Prosecutor General and Counsel for the complainant, had no objection to the acceptance of appeal of accused and their acquittal---Conviction and sentence of accused persons, were set aside and they were acquitted of all the charges, in circumstances.

Muhammad Aslam Khan Buttar for Appellants.

Khurram Khan, Deputy District Public Prosecutor for the State.

Hafeez-ur-Rehman Atif for the Complainant.

Date of hearing: 23rd January, 2013.

2015 P Cr. L J 1146

[Lahore]

Before James Joseph, J

SADAQAT HUSSAIN SHAH---Petitioner

versus

The STATE and another---Respondents

Crl. Misc. No. 6000-B of 2015, decided on 18th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 381-A & 411---Theft of vehicle and receiving stolen property---Bail, grant of---Case of further inquiry---Recovery on the pointation of accused---Effect---Six days, delay in lodging of FIR which had not been explained---Accused was neither named in FIR nor there was direct evidence against him---No one claimed to have seen accused while stealing alleged vehicle---Accused was involved for the first time in case through supplementary statement recorded by complainant 10 days after registration of FIR without specifying his source of information as to how he came to know about the involvement of accused---Validity---Although recovery of alleged stolen vehicle had been effected on the pointation of accused yet provisions of S. 411, P.P.C. were attracted which entailed maximum punishment of three years which did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused had been behind the bars since his arrest---Matter to the extent of accused was one of further inquiry as contemplated under S.497(2), Cr.P.C.---Bail was allowed in circumstances.

Muhammad Zain Qazi for Petitioner.

Ch. Muhammad Akram Tahir, DDPP.

Zafar ASI with record.

2015 P Cr. L J 1153

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

SHAUKAT HAYAT---Appellant

versus

The STATE---Respondent

Criminal Appeal No.70 and Murder Reference 18 of 2010, heard on 29th April, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 452--- Qatl-i-amd, house-trespass after preparation for hurt, assault, wrongful restraint--- Appreciation of evidence---Night-time occurrence was reported by single eye-witness against unknown accused with considerable, inordinate and unexplained delay--- Accused was nominated subsequently on the basis of Wajjtakkar evidence only---Complainant who was also eye-witness did not identify the accused; she nominated the accused on the basis of information given to her by given up witness---Complainant claimed that she was the first cousin of accused and mentioned his features but did not recognize him---Deceased was shot from a close range but no blackening was found around the injury---FIR was registered with a delay of six hours yet accused was not nominated---Delay adversely affected the credibility of prosecution version leading to inference that occurrence was not witnessed by any one--- Witness of Wajjtakkar had been given up by prosecution; adverse inference could be drawn that such witness would not have supported the prosecution witness---Prosecution failed to prove the evidence of Wajjtakkar---No motive was attributed in FIR---Motive attributed by complainant subsequently was not supported by other prosecution witnesses---Recovery of empties was of no value where other pieces of evidence had been disbelieved---Private witness of recovery of pistol was not produced before trial Court---Prosecution failed to discharge its responsibility to prove the charge beyond shadow of doubt---Not many doubts but a single doubt in prudent mind was sufficient to acquit accused---Accused was acquitted.

Akhtar Ali and others v. The State 2008 SCMR 6; Nazeer Ahmad v. Gehne Khan 2011 SCMR 1473; Lal Khan v. The State 2006 SCMR 1846; Nasir Jamal and 2 others v. The State 2006 PCr.LJ 557; Mst. Mumtaz and others v. The State 1999 MLD 988; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Azhar Iqbal v. The State 2013 SCMR 383 and Mst. Shamshad v. The State 1998 SCMR 854 rel.

Sarfraz Ali Khan for Appellant.

Basharat Ullah Khan for the Complainant.

Ch. Qaiser Mushtaq, A.D.P.P. for the State.

Date of hearing: 29th April, 2014.

2015 P Cr. L J 1169

[Lahore]

Before Muhammad Yawar Ali, J

ZAFAR ALI and another---Petitioners

versus

The STATE and another---Respondents

Crl. Misc. No.1424-B of 2015, decided on 19th February, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, confirmation of--- FIR had been lodged with an inordinate delay of 1-1/2 months, for which no plausible explanation was forthcoming---FIR had been lodged by the complainant with mala fide intention and ulterior motives on account of civil litigation, which was pending between the parties---Accused persons had been charged with offences which did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail was a rule, and refusal was an exception in the cases not punishable with death, imprisonment for life, or ten years imprisonment---Accused persons were previous non-convicts---Ad-interim pre-arrest bail earlier allowed to accused persons, was confirmed by High Court in circumstances.

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

Malik Rab Nawaz for Petitioners.

Abdul Jabbar Dogar, D.D.P.P. with Ubaid Ullah, S.I. for the State.

Muhammad Zahid Qureshi for the Complainant.

2015 P Cr. L J 1178

[Lahore]

Before Manzoor Ahmad Malik, J

GHULAM HUSSAIN---Appellant

versus

The STATE---Respondent

Criminal Appeal No.351-J of 2006, heard on 28th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing badi'ah---Appreciation of evidence---Delay of about four hours in reporting the crime to the Police, was not conscious or deliberate---Complainant, who was also injured in the incident, his presence could not be doubted---Other witness of ocular account, was also resident of the same village where occurrence took place---Said witness had sufficiently explained his presence at the place of occurrence and it could safely be concluded that complainant and other witness, were present at the place of occurrence and had witnessed the crime---Ocular account was fully supported by the medical evidence---Prosecution case was corroborated by the recovery of dagger at the instance of accused, coupled with the positive report of Chemical Examiner and that of Serologist---Motive alleged by the complainant in the FIR, as well as before the Trial Court, could not be established during the trial---Accused failed to substantiate the defence plea---If both the versions, i.e. prosecution story and the defence plea, were kept in juxta position, the prosecution story, appeared to be more probable and rang true---Prosecution had successfully brought home guilt against accused to the hilt---Conviction and sentences awarded to accused by the Trial Court were maintained, in circumstances.

Ashiq Hussain v. State PLD 1994 SC 879 and Amin Ali v. The State 2011 SCMR 323 ref.

Mrs. Bushra Qamar defence counsel appointed at State expense for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Rao Iqrar Ahmad for the Complainant.

Date of hearing: 28th May, 2014.

2015 P Cr. L J 1207

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. RIFFAT PARVEEN---Petitioner

versus

REGIONAL DIRECTOR ANTI-CORRUPTION ESTABLISHMENT MULTAN REGION, MULTAN and 7 others---Respondents

W.P. No. 11947 of 2013, decided on 2nd April, 2014.

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

----S. 5-A---West Pakistan Anti-Corruption Establishment Rules, 1985, R.2(E)---Constitution of Pakistan, Art.199---Constitutional petition---Securing employment on the basis of bogus and fraudulent documents---Complainant, who was first cousin of ex-husband of the petitioner, in his application filed before Executive District Officer and complained that the petitioner had secured the employment on the basis of bogus and fraudulent documents---Three successive inquiries were held against the petitioner, but she was exonerated in said enquiries and was given a clean chit---Despite such exoneration, a fresh notice was sent to the petitioner to appear before the Anti-Corruption Establishment---Patience of the petitioner wore thin---Lady was fed-up with such an administration of justice as she was being singled out and harassed for such a treatment by the so-called law enforces---Petitioner approached High Court to seek a direction to authorities to restrain from harassing her in the name of successive inquiries---Helpless lady had been made the target of successive inquiries by Anti-Corruption Establishment in the name of unearthing forgery, on the basis of which she was alleged to have succeeded in securing the employment in the department concerned---Under R.2(E) of the Anti-Corruption Establishment Rules, 1985, Competent Authority could accord permission to hold an inquiry or to order registration of a criminal case, or drop the case, but under said Rule, Competent Authority did not have unlimited, unbridled and untrammeled authority to go on ordering the holding of enquiry after enquiry against a person, until the victim either submitted to the demands of the complainant, or to those of Anti-Corruption Establishment or yielded to the unbearable pressure---Regional Director, Anti-Corruption Establishment considered himself to be a law into himself---Witch-hunting, and that too of a poor, helpless lady health worker was too disgusting---Authority was restrained from harassing the petitioner in the name of carrying out inquiries against her, when in three successive inquiries allegations levelled against the petitioner were found baseless, groundless and unfounded, and dropping of proceedings against the petitioner was recommended.

Ch. Muhammad Afzal Jatt for Petitioner.

Muhammad Javed Saeed Pirzada, AAG with Naseer Ahmad Khan, Regional Director Anti-Corruption Establishment, Multan for Respondents.

2015 P Cr. L J 1217

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

ALLAH NAWAZ---Appellant

versus

The STATE---Respondent

Criminal Appeal No.434 of 2010 and Murder Reference No.7 of 2011, heard on 3rd July, 2014.

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

----S. 302--- Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Crime weapon---Recovery from public place---Positive report of Chemical Examiner and Serologist---Effect---Dagger allegedly recovered on the pointation of accused through recovery memo was not blood stained, positive reports of Chemical Examiner and Serologist were not reliable and disbelieved---Recovery of dagger from open place not in exclusive possession of accused accessable to everyone was not believable and the same was disbelieved in circumstances.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Substitution phenomena---Sentence, reduction in---Mitigating circumstances---Single blow---Accused was convicted by Trial Court under section 302 (b) P.P.C. and sentenced to death---Validity---Prosecution evidence was trust worthy and straight forward and there was no mis-identity of accused as he was relative of complainant while deceased was son of complainant and it was a case of single accused---No probability that real father would let off the real culprits and would falsely implicate accused for murder of his son, substitution in such like cases was a rare phenomenon---Just before actual occurrence of murder of deceased, a quarrel had taken place between deceased and accused and at the spur of moment without any previous motive or premeditation in the heat of passion only single dagger blow was given by accused to deceased which landed on his belly without any repetition---High Court extended benefit of doubt to accused as there was extenuating circumstance and death sentence awarded by Trial Court to accused was quite harsh---High Court altered sentence of death into imprisonment for life---Appeal was allowed accordingly.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Meer Muhammad alias Meero v. The State 2009 SCMR 1188 and Latif Ullah v. The State 2007 SCMR 994 rel.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 340(2)---Qatl-i-amd---Defence plea at belated stage---Effect---Accused himself did not appear under S.340(2), Cr.P.C. and also did not take plea of alibi at initial stage during investigation after his arrest in his first version---Defence witnesses who did not appear during investigation in support of version of accused, their evidence during trial after a long time was not believable in circumstances.

Mehar Ahmed Sher Kathia for Appellant.

Ch. Asghar Ali Gill, DPG for the State.

Muhammad Bilal Bhatti for the Complainant.

Date of hearing: 3rd July, 2014.

2015 P Cr. L J 1240

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Messrs ITTEFAQ FOUNDRIES (PVT.) LTD. and 4 others---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Federal Secretariat, Islamabad and 2 others---Respondents

Writ Petition No. 2618 of 2011, decided on 6th February, 2015.

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

----S. 18(g)--- Investigation--- Non-association of accused---Responsibility of investigating officer---Scope---Prime responsibility of Investigating Officer is to collect incriminating evidence against accused so that Court of law should arrive at a just and fair conclusion pertaining to guilt or innocence of accused---Associating accused in every investigation is a sine qua non.

Nadeem Sarwar v. Station House Officer Saddar Hafizabad and others 2000 YLR 756 and Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 rel.

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

----Ss. 5(r) & 18---Contract Act (IX of 1872), S. 62---Companies Ordinance (XLVII of 1984), S. 284(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of reference---Wilful default---Novation of contract---Petitioners availed finance facility from financial institutions and reference was filed by National Accountability Bureau on the allegation of wilful default---Plea raised by petitioners was that there was a novation of contract between parties and no amount was outstanding against them---Validity---Subsequent contract based on mutual agreement of parties was novation of original contract between petitioners and creditor banks and other institutions---Once original contract had been novated, right and obligations thereunder stood extinguished and were replaced by rights and obligations under the novated contract---Novation of contract in fact had created a new contractual obligation and variation in terms of original contract, therefore, if there was any default simplicitor or wilful, stood extinguished by virtue of subsequent agreement between the parties which came under judicial consideration of High Court in civil suit---As the arrangement between the parties was already pending between the parties before competent Court of law, therefore, there was no occasion or cause of action available with financial institution to file a complaint with National Accountability Bureau or National Accountability Bureau authorities to proceed against petitioners under National Accountability Ordinance, 1999---Petitioners had paid all outstanding amount to creditor banks along with mark-up and authorities had no objection to quashing of reference---Petition was allowed in circumstances.

National Bank of Pakistan v. Ittefaq Foundries and others 2014 CLD 1068; The State v. Salehoon PLD 1971 Lah. 292; Muhammad Sharif v. The State PLD 1971 Lah. 708; State v. Salehoon PLD 1971 Lah. 292 and The State of Orissa v. Minaketan Patnaik AIR 1953 Orissa 160 rel.

(c) High Court (Lahore) Rules and Orders---

----Vol.V, Chap. 4, Part H, R. 5---Referee Judge, opinion of---Scope---Due to difference of opinion between two Judges of Division Bench of High Court, matter was referred to Referee Judge---Effect---Petition was not to be referred again to same Division Bench of High Court which originally heard the same as the decision would not be that of majority, rather it would be the opinion of Referee Judge which had decisive effect and was of binding nature---Judgment had to follow the opinion of Referee Judge.

Ashtar Ausaf Ali assisted by Faisal Nawaz for Petitioners.

Waqas Qadeer Dar, Prosecutor General for NAB, Naseer Ahmed Bhutta, Additional Attorney General and Qamar ul Haq Bhatti, Standing Counsel for Federation of Pakistan.

Date of hearing: 6th February, 2015.

2015 P Cr. L J 1279

[Lahore]

Before Arshad Mahmood Tabassum, J

TARIQ SOHAIL BUTT---Petitioner

versus

FEDERATION OF PAKISTAN, MINISTRY OF PETROLEUM AND NATURAL RESOURCES, PAK SECRETARIAT ISLAMABAD through Secretary and 3 others---Respondents

Writ Petition No. 1703 of 2014, heard on 10th July, 2014.

Gas (Theft Control and Recovery) Ordinance (II of 2014)---

----Ss. 2(1)(j), 4, 5(5) & 13---Constitution of Pakistan, Art.199---Constitutional petition---Removal of gas meter and disconnection of gas supply on ground of default---Jurisdiction of Gas Utility Court---Bar on jurisdiction of other courts---Under subsection (5) of S.5 of the Gas (Theft Control and Recovery) Ordinance, 2014 jurisdiction of all other courts and authorities had been barred in respect of matters which were under jurisdiction of Gas Utility Court established under Gas (Theft Control and Recovery) Ordinance, 2014---Judgments, decrees and orders of Gas Utility Courts were appealable before High Court---Constitutional petition was not maintainable as grievance of petitioner was exclusively triable by Gas Utility Court under S.4 of the Gas (Theft Control and Recovery) Ordinance, 2014---Constitutional petition was dismissed.

Khalid Mehmood v. Collector of Customs 1999 SCMR 1881 ref.

Rizwan Niaz for Petitioner.

Jamal Mahmood Butt for Respondents.

Ch. Azhar Mahmood, Standing Counsel with Altaf Executive Law Officer.

Date of hearing: 10th July, 2014.

2015 P Cr. L J 1293

[Lahore]

Before Miss Aalia Neelum, J

ALI SHER---Appellant

versus

The STATE---Respondent

Criminal Appeal No. 175 of 2007, heard on 18th June, 2014.

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

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), Ss.221 & 342---Criminal breach of trust by public servant or by banker, merchant or agent, criminal misconduct---Appreciation of evidence---Misappropriation of forest trees by employees of Forest Department---District Forest Officer did not initiate any proceeding against two nominated accused/employees---Inquiry report was not produced by prosecution during trial---District Forest Officer failed to give any explanation for exonerating co-accused---One of co-accused was produced as prosecution witness---Such witness was not an independent witness---Said witness/co-accused was rather directed to prepare the 'Damage Report' against the accused which created doubts about authenticity of allegations---No evidence was brought on record that accused had misappropriated 35 trees---Ingredients of alleged offences had not been proved---Investigating Officer did not inspect the site nor recorded any other witness except those mentioned in the inquiry report---No charge having been framed with regard to allegation of tearing the 'Damage Book', recording of evidence in this regard would be a nullity in the eyes of law---Under S.221, Cr.P.C. charge was required to be precise formulation of specific accusation made against accused---Allegation of destroying the 'Damage Book' by accused or his absconsion having not been put to accused while recording his statement under S.342, Cr.P.C., any incriminating piece of evidence in this regard could not be used against accused---Trial Court was not justified in convicting the accused---Conviction and sentence of accused were set aside, in circumstances, he was acquitted of the charges.

Muhammad Attique Butt and another v. The State 2009 YLR 507 rel.

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

----S. 342---Application of S. 342, Cr.P.C.---Incriminating piece of evidence not put to accused while recording his statement under S.342, Cr.P.C. could not be used against him.

Munir Ahmed alias Munni v. The State 2001 SCMR 56 rel.

M. D. Chaudhary for Appellant.

Iftikhar ul Haq Chaudhary, Additional Prosecutor-General for the State.

Date of hearing: 18th June, 2014.

2015 P Cr. L J 1315

[Lahore]

Before Shahid Hameed Dar, J

Malik JAVED and another---Petitioners

versus

The STATE and another---Respondents

Crl. Misc. No.1179-B of 2014, decided on 19th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 462-C---Theft of sui-gas---Pre-arrest bail, refusal of---Prima facie case---Both the accused were owners of steel re-rolling mills allegedly consuming stolen sui-gas---Raiding party consisted of special task force team of Sui-gas department, besides district administration officials and local police, which on receipt of spy information as to theft of gas, raided steel re-rolling mills--- Raiding party dug up suspected spot and unearthed theft of gas through no-return valve fixed on 4¢¢ diameter distribution pipeline and stolen gas was being supplied to steel mills---Raiding party also discovered a tunnel between dug up place and factory---No-return valve and consumer meter station (CMS) were removed and taken into possession---Prosecution case brimmed with connecting evidence against accused persons and there existed no material to believe at bail stage that they had been falsely involved in case due to malice or ulterior motives of complainant or they had not committed offence alleged---Pre-arrest bail was refused in circumstances.

Dr. Muhammad Riaz Akhtar alias Dr. Shahid v. The State and another 2012 SCMR 1685 and Ghulam Ahmad Chishti's case 2013 SCMR 385 ref.

Aitzaz Ahsan for Petitioners.

Rana Tassawar Ali Khan, Deputy Prosecutor-General Punjab.

Rana Zia-ul-Islam Manj for the Complainant.

Muhammad Zia Ahmed, General Manager Sui-Gas and Iqbal Hassan Shah, DSP.

2015 P Cr. L J 1326

[Lahore]

Before Shah Khawar, J

MUHAMMAD TARIQ and 2 others---Petitioners

versus

The STATE and another---Respondents

Criminal Revision No. 537 of 2014, decided on 11th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss.310, 337-A(i)(ii), 337-F(i), 337-L(2), 354, 452, 148 & 149---Compounding of qisas in qatl-i-amd, causing Shajjah-i-Khafifah, Mudihah, damiyah, hurt, assault or criminal force to woman with intent to outrage her modesty, house-trespass after preparation for hurt, assault or wrongful restraint---Compromise---Complainant and both injured persons, appeared before the court, and submitted their affidavits; and also got recorded their statements before the court to the effect that; they had forgiven accused person in the name of Almighty Allah; and did not want to proceed further; and also had no objection on their acquittal---Compromise had been arrived at between the parties for mutual harmony; and court saw no reason not to accept the same; as it appeared that same was genuine and without any coercion, duress, pressure, compulsion, deception or threat coupled with the fact that it was according to the settled principles by superior courts--- Compromise was accepted and sentence awarded to accused persons vide impugned judgment under Ss.337-A(i)(ii), 337-F(i), 337-L(2), 354, P.P.C., were set aside, and accused were acquitted of the said charges---Section 452, P.P.C., was non-compoundable---Accused persons being behind the bars since long period, taking a lenient view, while maintaining conviction of accused persons under S.452, P.P.C., their sentence was reduced to the period already undergone by them---Accused were released, in circumstances.

Mrs. Bushra Qamar for Petitioners.

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Complainant in person.

Date of hearing: 11th July, 2014.

2015 P Cr. L J 1354

[Lahore]

Before Mehmood Maqbool Bajwa and Zafarullah Khan Khakwani, JJ

The STATE---Petitioner

versus

MUHAMMAD BASHIR alias PHIPRU and 2 others---Respondents

Writ Petition No. 1940 of 2014, decided on 9th September, 2014.

Criminal Procedure Code (V of 1898)---

----S.540---Qanun-e-Shahadat (10 of 1984), Arts.72, 73, 74, 75 & 76---Penal Code (XLV of 1860), Ss.384 & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Arms Ordinance (XX of 1965), S.13---Extortion, kidnapping for ransom, act of terrorism, possessing unlicensed arm---Summoning of witnesses and original challan of cases---Carbon copies of recovery memos.---Exhibition in evidence---During recording of evidence, two applications, one for summoning two Police Officials as witnesses; and other for summoning of original challan of cases, were submitted by Public Prosecutor---Trial Court accepted application filed under S.540, Cr.P.C. for summoning of two Police Officials, but dismissed application, for summoning of original challans---After dismissal of application filed for summoning of original challans, Public Prosecutor tendered in evidence carbon copies of recovery memos, but request in that respect was turned down by the Trial Court---Validity---Carbon copies of the documents, if made by a uniform process in furtherance of performing official duty, was admissible in evidence, being primary evidence---Trial Court should have accepted the carbon copies of the recovery memos in evidence as primary evidence---If there was some irregularity or same were blotched, as a matter of abundant caution, the Trial Court could have requisitioned the record of challans in which original, were available--- Refusal of Trial Court to accept carbon copies in evidence, had caused serious prejudice to the prosecution, who had all the right to prove its case---Findings of the Trial Court were not sustainable---Impugned order was set aside, and the prosecution was allowed to tender in evidence carbon copies of the recovery memos; and the Trial Court would exhibit the same after comparison with the original.

Muhammad Yasir v. The State PLD 2008 Lah. 523; Prithi Chand v. State of Himachal Pradesh 1990 MLD 1389 and Shera and 4 others v. The State PLD 1970 Lah. 735 ref.

Muhammad Usman, Deputy Prosecutor General for the State.

Nemo for Respondents Nos.1 and 2.

2015 P Cr. L J 1380

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

SAFEER AHMAD and others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos. 1612 and 1586 of 2007, heard on 26th March, 2015.

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

----S. 21-C---Explosive Substances Act (VI of 1908), S. 5---Qanun-e-Shahadat (10 of 1984), Art. 40---Criminal Procedure Code (V of 1898), S. 397---Training of terrorism and recovery of explosive substance---Appreciation of evidence---Concurrent sentences---Recovery on disclosure---Prompt FIR---Police witnesses, evidence of---Accused were convicted by Trial Court and sentenced to various imprisonments extending to 14 years, which were ordered to run consecutively---Validity---FIR was got lodged within a short span of thirty minutes and complainant not only named all accused persons but had also mentioned each and every minor as well as material fact of incident therein, which excluded possibility of deliberation or consultation regarding false implication of accused---Prosecution successfully proved its case against accused persons who were caught red-handed and huge quantity of material to be used for preparation of explosives was recovered from them---No element of doubt was available in statements of prosecution witnesses which inspired confidence and nothing was found on record which could establish that witnesses deposed against accused persons and implicated them due to previous enmity, grudge or malice or to fulfil some ulterior motive---Ocular evidence was not only corroborated by recoveries effected on pointing out of accused persons at the time of their arrest but data retrieved from their laptop also strengthened claim of prosecution that accused were planning to do something extremely inhumane in the shape of terrorist attacks---High Court declined to interfere in conviction and sentence passed by Trial Court and maintained the same---High Court directed sentences to run concurrently instead of consecutively and the judgment of Trial Court was modified to that extent---Appeal was dismissed accordingly.

(b) Criminal trial---

----Evidence---Police witnesses---Scope---Police witnesses are as good witnesses as any other witness unless and until defence can successfully shatter their credibility or bring on record any mala fide of police witnesses to depose against accused.

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

----Ss. 7 & 21---Anti Terrorism trial---Police witnesses---Absence of private witnesses---Effect---Police witnesses cannot be brushed aside merely on bald allegation that they happened to be employees of police department---In cases of terrorism, people from public try not to indulge themselves as witnesses of occurrence so as to avoid further enmity with terrorists.

Qazi Misbah ul Hassan and Rana Maqsood ul Haq for Appellants.

Abdul Samad Khan, Additional Prosecutor-General and Tariq Javed, District Public Prosecutor for the State.

Date of hearing: 26th March, 2015.

2015 P Cr. L J 1395

[Lahore]

Before Shahid Hameed Dar, J

RASHID AHMAD---Petitioner

versus

The STATE and another---Respondents

Cr. Misc. No.1 of 2015 in Criminal Appeal No. 185, decided on 20th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 496-B---Fornication---Suspension of sentence---Accused was convicted by Trial Court and sentenced to five years imprisonment---Validity---Trial Court concluded that it was not a case of rape punishable under S. 376(2), P.P.C. but it was a case of fornication punishable under S. 496-B, P.P.C.---High Court found it to be an interesting question to deal with at the time of final adjudication of appeal, whether only a male person could be convicted/sentenced for the charge of fornication and female was to be believed as a witness against male partner in such a situation---Accused was taken into custody by police on 29-1-2015, after pronouncement of judgment and he had been languishing in jail since then---High Court suspended the sentence awarded to accused by Trial Court as his continued incarceration would not be of any consequence to prosecution case---Bail was allowed in circumstances.

Azam Nazeer Tarar for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor-General Punjab for the State.

Muhammad Ahsan Bhoon for the Complainant.

2015 P Cr. L J 1406

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Syed MUHAMMAD ASIF---Petitioner

versus

The STATE---Respondent

Criminal Miscellaneous No.1060-B of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss.2(e), 22, 36, 37 & 38---Penal Code (XLV of 1860), S.109---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S.32---Violation of privacy of information, damage to information system, etc.---Bail, grant of---Raid by Federal Investigation Agency without warrant of search required under S.32 of the Pakistan Telecommunication (Re-organization) Act, 1996---Under S.22 of the Electronic Transactions Ordinance, 2002, Pakistan Telecommunication (Re-organization) Act, 1996 was applicable to proceedings under provisions of Electronic Transactions Ordinance, 2002---Premises raided by the Federal Investigation Agency did not belong to accused---Mere presence and collective confession of accused was very weak type of circumstances to connect the accused with alleged crime---Assertion of S.109, P.P.C. had diminished the gravity of offence against accused---Accused could not be connected with alleged offences at bail stage---Accused was no more required for further investigation---Offences under Ss.36 and 37 of the Electronic Transactions Ordinance, 2002 having been made punishable with fine independently (alternatively), case of accused did not fall within prohibitory clause of S.497, Cr.P.C.---Pre-trial punishment was not intention of law---Detention of accused was nothing but pre-trial punishment---Bail petition was allowed.

Raja Ikram Ameen Minhas for Petitioner.

Tariq Bilal, Legal Advisor for FIA with Syed Fakhir Hussain Shah, SI along with record.

2015 P Cr. L J 1416

[Lahore]

Before Sikandar Zulqarnain Saleem, J

MUHAMMAD RAMZAN and another---Petitioners

versus

The STATE and 5 others---Respondents

Writ Petition No.8591 of 2009, decided on 6th May, 2014.'

Criminal Procedure Code (V of 1898)---

----Ss. 157 & 561-A---Constitution of Pakistan, Art.199---Penal Code (XLV of 1860), S.392---Constitutional petition---Robbery---Discharge of accused from the case---Investigating Officer after concluding investigation, recommended the discharge of accused persons from the FIR---Magistrate acceding to the request made by Investigating Officer, passed well reasoned order discharging accused person from the case---Revision by the complainant against discharge order having been accepted by Appellate Court below, accused persons filed revision against order of Appellate Court below---Appellate Court below had acted beyond the mandate of law as the revision petition was not competent against discharge order passed by Magistrate---Order of discharge was merely an administrative executive order regarding custody of accused---Order of discharge only would mean that physical custody of accused was not further required for the purpose of investigation and could not be construed to be an order regarding cancellation of criminal case or termination of prosecution---Order of discharge, could always be recalled by the Magistrate, whenever, subsequently physical custody was required for proper investigation---Even a discharged accused, could subsequently be summoned by the Trial Court to face a trial---Police was quite justified in seeking discharge of accused persons and Magistrate was also amply justified in passing the order---No reason was available for interference in said order passed by Magistrate---Order passed by Appellate Court below, was set aside revision petition filed against order of Magistrate was not competent.

Ahmad Raza for Petitioners.

2015 P Cr. L J 1425

[Lahore]

Before Muhammad Qasim Khan, J

IMTIAZ ALI alias PAPU and 4 others---Petitioners

versus

The STATE and another---Respondents

Criminal Miscellaneous No.375-B of 2014, decided on 18th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, Rr.2(b), 26-16/44, 34, 35, 36, 37, 38, 43(a) & 44---Penal Code (XLV of 1860), Ss.420, 467, 468, 471, 482, 483, 485 & 486---Cheating and dishonestly inducing delivery of property, forgery of valuable security, will etc., forgery for purpose of cheating, using as genuine a forged document, punishment for using a false trade mark or property mark, counterfeiting a trade mark used by a public servant, making or possession of any instrument for counterfeiting a trade mark or property mark, selling goods marked with a counterfeit trade mark or property mark---Bail, refusal of---Accused contended that District Officer, Civil Defence could not raid reclamation plant for collection of samples for analysis---Under R.2(b) and R.43(a) of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 District Co-ordinating Officer could delegate powers of entry, inspection and collection of sample to District Officer, Civil Defence---Police Official could not enter any refinery, blending plant (reclamation plant) and marketing company which was registered under R.16 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 in which case Rules 16 to 33 of the Pakistan Petroleum (Refining Blending and Manufacturing) Rules, 1971 would be applicable---Where refinery, blending plant, reclamation plant and marketing company was established without licence and operated without permission of authority, requirement/restriction/protection under R.34 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 would not be applicable and police would be competent to enter, search, inspect the site and collect samples for analysis---Law protected those who abided by law---Rules 34, 35, 36 and 37 of the Pakistan Petroleum (Refining, Blending and Manufacturing) Rules, 1971 were directory in nature and same were not mandatory as no penal clause had been provided for non-observance of such rules---Accused were running unauthorized factory dealing with lubricant oil and reclamation plant without fulfilling requirements of Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 so they were exposed/amenable to all legal consequences under Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 as well as Penal Code, 1860---Where a statute specified that an offence was bailable or non-bailable, cognizable or non-cognizable, Criminal Procedure Code, 1898 would be applicable---Under R.44 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 offences alleged to have been committed by accused were punishable with three years imprisonment and were non-bailable---In the absence of allegations of mala fide or ulterior motives on the part of complainant, accused were not found entitled to extraordinary concession of pre-arrest bail---Bail application was dismissed.

Raja Ansar Nadeem Ahmad v. The State and others 2012 YLR 2855 ref.

Raja Khalid Asghar for Petitioners.

Malik Muhammad Jaffar, Deputy Prosecutor General with Shehzad Instructor Civil Defence, Khanewal.

2015 P Cr. L J 1436

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD NAZIR---Petitioner

versus

DEPUTY INSPECTOR-GENERAL OF POLICE and 6 others---Respondents

Writ Petition No.5708 of 2014, heard on 16th May, 2014.

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

----S. 173---Submission of Challan---Re-investigation of case---After investigating case and submission of final report, police is left with no authority to reinvestigate matter once again---All evidence collected by police is placed before Court for determination of innocence or guilt of accused person.

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

----Ss. 173 & 204---Penal Code (XLV of 1860), Ss.302 & 337-J---Qatl-i-amd, causing hurt by means of poison---Constitution of Pakistan, Art.199---Constitutional petition---Re-investigation of police case---Private complaint---FIR on the allegations of qatl-i-amd and causing hurt by means of poison was registered against accused persons, police completed investigation and submitted investigation report---Complainant dissatisfied with police report filed private complaint in which accused persons had been summoned---On the application of accused, a new Investigating Officer was appointed for re-investigation---Validity---Investigation of police had no bearing upon merits of private criminal complaint which was to be decided by Court of law independently without being influenced by investigations---High Court set aside the order passed by police authorities and investigation carried out by Investigating Officer was coram non judice and had no bearing upon the merits of the case---High Court directed Trial Court to decide private complaint independently without being influenced from subsequent investiga-tions conducted by police---Petition was allowed in circumstances.

Riaz Hussain and others v. The State 1986 SCMR 1934; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Muhammad Nisar Cheema v. Mazhar Javed PLD 2007 SC 31; Liaquat Ali Virk v. Inspector General of Police, Lahore PLD 2010 Lah. 224; Muhammad Yousaf v. The State and others 2000 SCMR 453; Khalid Javed v. Board through Deputy Inspector General of Police (Investigation), Lahore and 5 others PLD 2009 Lah. 101; Muhammad Hafeez v. District Police Officer Narowal and 4 others 2010 YLR 3142 and Amir Masih's case 2013 SCMR 1059 ref.

Saeed Ullah Khan for Petitioner.

Ghulam Mustafa Chaudhary for Respondent.

Khawar Ikram Bhatti, Addl. A.-G. Punjab for the State.

Date of hearing: 16th May, 2014.

2015 P Cr. L J 1443

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD AKMAL and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeal Nos. 2019 of 2012 and 267 of 2013, heard on 25th April, 2014.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Incident was promptly lodged to the Police---Victim, a minor, in her statement had fully implicated accused in the commission of alleged offence---Statement of victim was fully corroborated by medical evidence---No evidence had come on record to indicate that previously the complainant had animus against accused to implicate him falsely in the case---Defence had failed to prove previous ill-will or party friction to falsely involve accused in the case---Accused had failed to show any misreading, non-appraisal of evidence or illegality in the impugned judgment---Case against accused stood proved beyond any shadow of reasonable doubt---Accused had been rightly convicted and sentenced under S.376, P.P.C. for a period of ten years' R.I.---Same was maintained---Commission of offence in question was not more than an act of mere juvenile delinquency and accused had no previous criminal record of involvement in any case of such like nature---Since accused was not a habitual offender chance of his rehabilitation could not be ruled out---Trial Court while taking a lenient view had already inflicted minimum sentence of ten years with fine of Rs.30,000 to accused.

Muhammad Afzal Shad for Appellants.

Saeed Ahmed Sheikh, Addl. Prosecutor General for the State.

Mian Muzaffar Hussain for the Complainant.

Date of hearing: 25th April, 2014.

2015 P Cr. L J 1473

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD IRSHAD---Petitioner

versus

The STATE and others---Respondent

Criminal Miscellaneous No.4869-B of 2015, decided on 7th May, 2015.

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

----S. 498---Pre-arrest bail, grant of---Principle---Accused cannot claim pre-arrest bail as of right.

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

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

----S. 498-A---Pre-arrest bail---Absence of accused---Effect---No Court is authorized to release a person by grant of pre-arrest bail, who is not present when his petition is called and heard---Physical presence of accused is not only be insisted upon purely as a matter of propriety but is a statutory pre-condition for grant of pre-arrest bail.

Jahanzeb and another v. The State 1999 MLD 1222 and Shabbir and 6 others v. The State 2012 YLR 964 rel.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), S.489-F---Dishonoring of cheque---Pre-arrest bail, grant of---Absence of accused---Trial Court declined pre-arrest bail to accused due to his absence at the time of hearing of bail application---Validity---Act of accused not appearing before Court of first instance when his petition seeking pre-arrest bail was being heard had a direct effect on the outcome of the case---Accused by not appearing in person before Trial Court had disentitled himself for the grant of pre-arrest bail by High Court---Although accused was charged with offence which carried maximum punishment of three years imprisonment and did not fall within the prohibitory clause of S.497, Cr.P.C. would not entitle the accused to grant of pre-arrest bail as of right---Pre-arrest bail was declined, in circumstances.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Jahanzeb and another v. The State 1999 MLD 1222; Shabbir and 6 others v. The State 2012 YLR 964 and Shameel Ahmed v. The State 2009 SCMR 174 rel.

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

----Ss. 497 & 498---Pre-arrest bail, grant of---Case of accused not falling under prohibitory clause of S.497, Cr.P.C.---Principle---Grant of pre-arrest bail to an accused in every case which does not fall within the prohibitory clause of S.497, Cr.P.C., is not a rule of universal application as each and every case has to be decided on its own facts.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

Rana Shakeel Ahmed Khan for Petitioner.

Ali Hassan District Public Prosecutor for the State

Naseer-ud-Din Khan Nayyer for the Complainant.

2015 P Cr. L J 1508

[Lahore]

Before Muhammad Anwaarul Haq and Mamoon Rashid Sheikh, JJ

MUHAMMAD IMRAN alias IMRANOO alias KALU SHAHPURIA---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.5375-B of 2015, decided on 7th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics drugs, import and export of narcotic drugs, trafficking or financing trafficking of narcotic drugs---Bail, grant of---Further inquiry---Petitioner was alleged to have thrown away pack of eleven hundred grams of heroin while fleeing away from the scene---Contention raised by petitioner was that present case was prima facie one of further inquiry as no identification parade had been conducted---Heroin had not been recovered from possession of petitioner---Quantity of heroin allegedly recovered was slightly higher than weight mentioned in S.9(b), of Control of Narcotic Substances Act, 1997---Petitioner was no longer required for purpose of investigation---Further incarceration of petitioner was not likely to further the prosecution case---Bail application was allowed accordingly.

Ch. Muhammad Ashraf Khan for Petitioner.

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

Muhammad Faiz, A.S.I. with record.

2015 P Cr. L J 1514

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD NAWAZ---Petitioner

versus

The STATE and 2 others---Respondents

Writ Petition No.14337 of 2014, decided on 23rd October, 2014.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque---Registration of case ordered by Justice of Peace---Petition for quashing of said order---High Court suspended operation of impugned order of Justice of Peace---Police had purportedly complied with order passed by Justice of Peace and registered FIR, without realizing that operation of that order had already been put on hold---Restraining order passed by a court, would go into effect, the very moment it was passed, regardless of the fact, whether the same was conveyed to quarters concerned or not---Plea of SHO that injunctive order passed by the High Court in constitutional petition was not communicated to him at the time of registration of FIR in question, was of no avail to him---Injunctive order was passed by High Court at 8-30 am., and in view of distance between the court and the Police Station, argument that the order was not duly conveyed to SHO, could not be accepted---FIR having been registered in contravention of lawful order passed by the High Court, could not be allowed to stand---Registration of FIR being abuse of process of law, was quashed, in circumstances.

Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR 127 rel.

Muhammad Waseem Khan Jaskani for Petitioner.

Jameel Hussain for Respondent.

Shoukat ASI.

2015 P Cr. L J 1524

[Lahore]

Before Qazi Muhammad Amin Ahmed and Muhammad Tariq Abbasi, JJ

TAHIR MEHMOOD alias ACCHU and another---Appellants

versus

The STATE and another---Respondents

Criminal Appeal No.136 of 2013-ATA and Capital Sentence Referene No.5 of 2013, decided on 21st November, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 186 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, obstructing public servant in discharge of public functions, assault or criminal force to deter public servant from discharge of his duty, act of terrorism---Appreciation of evidence---Three prosecution witnesses/Police Officials, were in complete union with fourth one---Reports of Chemical Examiner and Serologist, were in positive---Pistol recovered from accused, was in operating condition, and accompanying empties wedded therewith---Manner in which the deceased was killed, was not shrouded in mystery---Deceased, being Police Official, had laid his life in line of duty valiantly, while vindicating the dignity and honour of his calling---FIR, was not result of consultation, or deliberation, as accused was arrested red-handed with his weapon; no occasion or necessity existed for such an exercise---No material contradictions were found in the statements of witnesses, who were subjected to a grueling cross-examination---Difference between timings, given by some of the witnesses, was of no consequence, as such minute things were not observed in situation of crisis---No irreconcilable contradiction was found among the eye-witnesses---Police Officials, were as good witnesses as anyone from the public, for the reason that, it was not the status of a person that conferred credibility on him as a witness, but it was intrinsic value of his testimony, which was considered for acceptance of his deposition---Police Officials, in the present case, were natural witnesses, their presence at the spot could not be disputed---Even-dated dispatch of casings and 30 caliber pistol, lent corroborative support to prosecution's case without reservation---Where an accused was arrested red-handed, with the weapon and casings were secured the same day, even-dated dispatch, would not diminish value of a positive report---Objection about omission by the Trial Court to specifically mention S.7 of Anti-Terrorism Act, 1997, in the charge, was merely hyper-technical, causing no prejudice to accused, who was fully conscious about the nature of proceedings against him, and represented through a counsel of his choice---Contention that present was a case of lesser penalty as accused had no motive against the deceased, was repelled, as incident was not structured on any conventional motive---Deceased was fatally shot, when he, in discharge of his duty, attempted to bring accused to the due process of law---No mitigating circumstance favoured the accused---Prosecution had been able to prove its case against accused beyond a shadow of doubt---Conviction and sentences were maintained; death sentence was confirmed---Reference was answered in positive---Accused, was acquitted in case of murderous assault on a prosecution witness as said witness, opted not to implicate him.

Sardar Mehboob for Appellants.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Date of hearing: 21st November, 2014.

2015 P Cr. L J 1540

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

FATEH SHER and others---Appellants

versus

The STATE and others---Respondent

Criminal Appeals Nos.1386, 1631, 1610, Criminal Revision No.729 and Murder Reference No.370 of 2010, heard on 10th December, 2014.

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

----Ss. 302(b), 201, 364 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, kidnapping, common intention---Appreciation of evidence---Benefit of doubt---Withholding of material evidence---Extra-judicial confession---Ocular account furnished by prosecution witnesses could not be believed, as both the witnesses kept silent for 6/7 days and did not disclose the occurrence to anybody---Delay in disclosing the occurrence to the Police, and the mysterious silence of the witnesses, had gone unexplained during the trial---Statement of one of the prosecution witnesses, was also pregnant with dishonest and material improvements, which had further created doubt about the probity of his evidence---Prosecution had given up the only material witness, being unnecessary---Inference against the prosecution, in circumstances, was to be drawn for such withholding of material witness, under Art.129(g) of Qanun-e-Shahadat, 1984---Unnatural conduct of prosecution witness, cast serious doubt on veracity of his testimony---Accused persons, remained on extensive physical remand, but motorcycle on which the deceased was allegedly abducted, could not be recovered---No other independent witness to corroborate the stance of the complainant qua the abduction of deceased by accused and co-accused had been produced, despite alleged presence of other witnesses at the relevant time---Flagrant and material improvements, in the statements of the prosecution witnesses, had rendered the same doubtful, which could be kept out of consideration by the court---Co-accused had been acquitted of the charge by the Trial Court disbelieving prosecution's evidence and his extra-judicial confession---Conviction of accused could not be maintained on the basis of disbelieved extra-judicial confession---Evidence of extra-judicial confession, even, otherwise, was not confidence inspiring and believable---Evidence of recovery, which was corroboratory in nature in isolation, was not sufficient to connect the accused with the offence---Recovery, at the belated stage of physical remand, was not free from doubt in peculiar circumstances of the case---Prosecution could not prove its case against accused beyond any shadow of reasonable doubt---Case was replete with number of circumstances, which had created serious doubt about prosecution story---Prosecution had failed to prove its case against accused persons beyond the shadow of reasonable doubt---Conviction and sentence, recorded against accused persons by the Trial Court vide impugned judgment, were set aside they were acquitted from the charge and were released, extending them the benefit of doubt, in circumstances.

Khalid Javed v. State 2003 SCMR 1419; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Akhtar Ali and others v. The State 2008 SCMR 6; Ibrar Hussain and another v. The State and another 2007 SCMR 605; Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---Nature and appreciation of---Medical evidence was meant to describe the nature of injuries, seat of injuries and the weapon used during the occurrence; but it could not identify the faces of the culprits.

Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Tasawar v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 ref.

(c) Criminal trial----

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----Arts. 117 & 118---Criminal trial---Burden of proof---Responsibility to prove its case against accused would rest upon the prosecution; and that burden could not be shifted to the defence.

Mst. Shamshad v. The State 1998 SCMR 854 and Waqar v. Shaukat and others 2006 SCMR 1139 ref.

Sardar Khurram Latif Khan Khosa for Appellant (in Crl. Appeal No.1386 of 2010).

Naseem Ullah Khan Niazi for Appellant (in Crl. Appeal No.1631 of 2010).

Nazar Abbas Syed for the Complainant.

Mian Muhammad Awais Mazhar, Dy. Prosecutor General for the State.

Date of hearing: 10th December, 2014.

2015 P Cr. L J 1566

[Lahore]

Before Sikandar Zulqarnain Saleem, J

KHIZAR HAYAT---Petitioner

versus

JUDICIAL MAGISTRATE and 2 others---Respondents

Criminal Miscellaneous No.18-M of 2014, decided on 5th December, 2014.

Penal Code (XLV of 1860)---

----S. 489-F---Qanun-e-Shahadat (10 of 1984), Arts.133 & 134---Criminal Procedure Code (V of 1898), S.561-A---Dishonestly issuing a cheque---Right of cross-examination, closing of---Accused avoiding to cross-examination witness---Duty of court---Quashing of order---Cross-examination of witness---Document not part of challan was produced during cross-examination of witness---Admissibility---Statement of complainant was recorded during the trial---Partial cross-examination on the complainant was conducted by defence counsel, while for remaining cross-examination, defence counsel showed his inability, upon which Trial Court closed the right of further cross-examination---Revision petition, filed against order of the Trial Court was accepted with the observation that Trial Court after receiving back the judicial record would fix a date giving one more opportunity to defence counsel to conclude the cross-examination---Validity---Objection that the document which was not part of challan, same could not be exhibited or taken into consideration during cross-examination of witness, was devoid of force, as same was produced by the witness on the asking of defence counsel during cross-examination, and same was exhibited by the Trial Court---No bar existed to produce document, especially, when a particular question was asked by the defence counsel to witness regarding the production of the same before the Police during investigation---Court could not refuse to admit the document which was relevant for the decision of the case---Search of truth was the primary duty imposed upon the court for administration of justice and court could not base its opinion, merely on technicalities---No right was explicitly available to accused to secure legal representation at State expenses in the matters, other than entailing capital punishment---In such like cases, it was the duty of the Trial Court itself to put up a cross-examination on behalf of an un-represented accused, or who himself intentionally avoiding to cross-examine the witness---When defence counsel was constantly, not showing his appearance, it was the obligation of the Trial Court to put question itself to defend the cause of accused, or to offer accused to cross-examine the witness, in order to ascertain truth for just decision of the case---Cross-examination was a valuable right of an accused, and was the only vehicle through which the truth and falsity of the witness could be determined---Trial Court would be at liberty to receive in evidence any admissible document despite the same was not annexed with report under S.173, Cr.P.C., if said document would meet the standards of admissibility, and was necessary for the just decision of the case and also would allow cross-examination thereon---Trial Court was directed by High Court to give one more chance to the accused to complete cross-examination.

Muhammad Abbas for Petitioner.

Qaiser Mushtaq, ADPP for the State on Court's call.

2015 P Cr. L J 1580

[Lahore]

Before Miss Aalia Neelum and Muhammad Yawar Ali, JJ

The STATE through Prosecutor-General, Punjab---Appellant

versus

MUHAMMAD AZEEM alias SOHNI---Respondent

Criminal Appeal No.1020 of 2008, decided on 16th December, 2014.

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

----Ss. 9 & 48---Criminal Procedure Code (V of 1898), S.417---Possessing and trafficking narcotics---Appeal against acquittal---Reappraisal of evidence---Submission of counsel for accused was that the only question involved in the appeal related to reappraisal of evidence---Burden of proof lay heavily on the shoulders of the prosecution---Prosecution had to cover a distance between "may be true"; and "must be true"---While discharging its burden of proof, the prosecution, had to establish each single fact through cogent and convincing evidence---Findings recorded by the Trial Court could not have been so recorded on the evidence on record---Even assuming that another view could be taken against accused in respect of the charge, that could not be a ground to set aside an order of acquittal in order to succeed---State must show, that the findings recorded by the Trial Court could effectively be dislodged, and that such findings were unwarranted---Trial Court had rightly taken note of material contradictions, appearing in the evidence of the prosecution witnesses, with regard to vital parts of the prosecution case---Recovery of alleged contraband (charas) weighing 1250 grams, did not stand proved by the prosecution---Case property, which was dispatched to the office of the Chemical Examiner, was received in the office after the delay of one month and one day---Prosecution failed to give any explanation as to where the alleged samples were kept during the period of one month and one day---Grave doubt existed if the recovered narcotic was sealed and kept in a safe custody---Such circumstances created doubt about the veracity and authenticity of the report of Chemical Examiner---Prosecution evidence was not worthy of credence---Trial Court had correctly held that the charge had not been brought home to the accused in view of unsatisfactory nature of evidence and contradictions in prosecution evidence,.

Iftikhar ul Haq Chaudhary, Addl. Prosecutor General for the State.

2015 P Cr. L J 1592

[Lahore]

Before Arshad Mahmood Tabassum, J

NAEEM ABBAS---Petitioner

versus

DIRECTOR GENERAL, FEDERAL INVESTIGATION AGENCY (FIA), ISLAMABAD and 7 others---Respondents

Writ Petition No.3043 of 2013, heard on 11th May, 2015.

(a) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 31---Electronic Transactions Ordinance (LI of 2002), Ss.36 & 37---Penal Code (XLV of 1860), S.109---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Constitutional petition---Inherent powers of High Court---Quashment of FIR---Principles---Partial quashment of FIR---Permissibility---Petitioner sought quashment of FIR on grounds that FIR could be lodged only on complaint in writing by officer authorized by Pakistan Telecommunication Authority of Frequency Allocation Board---Validity---Petitioner had alternate remedy by way of approaching trial court for redressal of his grievance, as challan had already been submitted before trial court---Under Art.199(1) of Constitution, exercise of constitutional jurisdiction by High Court was subject to condition that petitioner should have no other adequate remedy provided under law---Present petition was filed by only one of the accused persons, and allowing partial quashment of FIR to the extent of petitioner was not permissible under law---Bar contained under S.31(5) of Pakistan Telecommunication (Re-organization) Act, 1996, which provided that no court shall take cognizance of any offence punishable under the Act except on complaint in writing by officer authorized by the Authority of Board, could not be pressed into service to seek quashment of FIR in question as offences charged against all accused persons were under both Electronic Transactions Ordinance, 2002 and Penal Code, 1860---Complaint was lodged by Pakistan Telecommunication Authority on basis of which inquiry was initiated and FIR was registered---Constitutional petition was dismissed in circumstance.

(b) Constitution of Pakistan---

----Art. 199(2)---Constitutional petition---Alternate and adequate remedy---Availability---Effect---Under Art.199(1) of Constitution, exercise of constitutional jurisdiction was subject to condition that petitioner should have no other adequate remedy provided under law---Petitioner had alternate remedy by way of approaching trial court for redressal of his grievance, as challan had already been submitted before trial court.

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

----S. 561-A---Quashing of FIR---Scope---Partial quashment---Permissibility---Petition for quashing of FIR was filed by only one of the accused persons, and allowing partial quashment of FIR for one accused was not permissible under law.

(d) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----S. 31---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Penal Code (XLV of 1860), S.109---Registration of FIR---Pre-requisites---Bar contained under S.31(5) of Pakistan Telecommunication (Re-organization) Act, 1996, which provided that no court shall take cognizance of any offence punishable under the Act except on complaint in writing by officer authorized by the Authority of Board, could not be pressed into service to seek quashment of FIR in question as offences charged against all accused persons were also under Electronic Transactions Ordinance, 2002 and Penal Code, 1860.

Liaqat Islam v. The State 2011 YLR 2280; Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 and Col. Shah Sadiq's case 2006 SCMR 276 rel.

Barrister Afzal Hussain and Malik Qamar Afzal for Petitioner.

Muhammad Umar Vardag for Respondents.

Amjad Jaleel, Standing Counsel with Mahmood ul Hassan, Deputy Director FIA and Fazal, S.I.

Date of hearing: 11th May, 2015.

2015 P Cr. L J 1597

[Lahore]

Before Mehmood Maqbool Bajwa and Mirza Viqas Rauf, J

NAVEEDA ABBAS---Appellant

versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others---Respondents

I.C.A. No.994 in W.P. No.22560 of 2014, decided on 13th January, 2015.

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

----S. 491---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Maintainability---Habeas corpus petition---Custody of minor---Petitioner (mother) filed habeas corpus petition for recovery of her minor daughter which was dismissed---Validity---High Court could only issue a writ of habeas corpus in exercise of powers conferred under Art. 199(1)(b)(i) of the Constitution---Right of intra-court appeal against an order passed under Art.199(1)(b)(i) of the Constitution was not available therefore, intra-court appeal was not maintainable---Petitioner had not given the specific date as to when respondent (father) had taken away the minor which was an important factor for exercising the jurisdiction under S.491, Cr.P.C. and Art.199 of the Constitution---No evidence was on record that minor was forcibly snatched by the respondent---Minor was examined by the Sessions Judge while adjudicating the petition under S.491, Cr.P.C. and she was comfortable and showed close attachment with the respondent---No exceptional and extraordinary circumstances existed for exercising jurisdiction under Art.199 of the Constitution and S.491, Cr.P.C.---No illegality had been pointed out in the impugned judgment which did not call for interference in intra-court appeal which was dismissed being not maintainable.

Mst. Fazlan Mai v. Rab Nawaz and another 1991 PCr.LJ 12 distinguished.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 rel.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art.199---Intra-court appeal---Scope---Writ of habeas corpus---No intra-court appeal would lie against an order under Art.199(1)(b)(i) of the Constitution.

Mian Aman Ullah Khan Chughatta for Appellant.

Miss Surraya Sultana Butt for Respondent No.3.

Shaan Gul, Additional Advocate-General for the State.

Date of hearing: 13th January, 2015.

2015 P Cr. L J 1609

[Lahore]

Before Erum Sajad Gull, J

HABIB BANK LTD.---Petitioner

versus

CAPITAL CITY POLICE OFFICER and others---Respondents

Writ Petition No.28918 of 2012, decided on 7th July, 2015.

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

----Ss. 22-A & 22-B---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 7---Police Order (22 of 2002) Art.155-C---Constitution of Pakistan,Art.199---Constitutional petition---Registration of FIR---Offences involving banking matter---Jurisdiction of ex officio Justice of Peace---Powers of Banking Court---Scope---Ex officio Justice of Peace issued direction under Ss.22-A & 22-B, Cr.P.C. to respondent for registration of criminal case against accused who were alleged to have stolen hypothecated stock of petitioner-Bank, but respondent failed to comply with said direction---Validity---Special Banking laws had been enforced to deal with all matters pertaining to Banks---Special law would override general law---Section 5(8) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 provided that in case procedure was not prescribed under special law, general law would be followed, and Bank had no choice to first avail remedy under general law or special law---Financial Institutions (Recovery of Finances) Ordinance, 2001 was a complete code, which did not provide that in banking matters, Bank had choice to avail general or special remedy---Financial Institutions (Recovery of Finances) Ordinance, 2001 was provided for Banking Court and for dealing with any offence---Remedy available to petitioner-Bank was through Banking Court under Financial Institutions (Recovery of Finances) Ordinance, 2001---Petitioner-Bank had only availed one remedy before Banking Court that was filing of suit for damages---Matters relating to Bank had to be dealt with only by Banking Court---Petitioner-Bank had no authority or justification to file application under Ss.22-A & 22-B, Cr.P.C. before ex officio Justice of Peace, nor did ex officio Justice of Peace had authority to entertain any such application---Orders of ex officio Justice of Peace were set aside---Constitutional petition was dismissed in circumstances.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 and Shaukat Ali and others v. The State and others 2012 CLD 1 distinguished.

Tariq Hameed and 2 others v. Additional Sessions Judge and 5 others 2015 MLD 1188 and Muhammad Asif Nawaz v. Additional Sessions Judge/Justice of Peace Multan and 2 others 2014 PCr.LJ 1 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 7---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5---Scope---Financial Institutions (Recovery of Finances) Ordinance, 2001 is a complete code, which does not provide that in banking matters, Banks have choice to avail general or special remedy---Financial Institutions (Recovery of Finances) Ordinance, 2001 is provided for Banking Court and deals with any offence.

Hassan Iqbal Warraich for Petitioner.

Malik Waseem Mumtaz, Addl. A.-G. for Respondents.

2015 P Cr. L J 1617

[Lahore]

Before Erum Sajad Gull, J

ALI HASSAN---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.8166-B of 2015, decided on 10th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVII of 1979), Ss. 17 & 22---Unlawful emigration, receiving money, etc. for providing foreign employment---Bail, grant of---Further inquiry---Recovery of passports of persons who were supposed to be sent abroad was effected from complainants---Time and place of occurrence not mentioned in FIR---Offences punishable with imprisonment, or fine or with both---Discretion of court---Scope---Delay in lodging of FIR---Complainants alleged that accused, having promised to send them abroad for employment in return of money, substantial part of which had been paid to him, had neither fulfilled said promise nor had he returned the amount so received---Held, no date, time and place was mentioned in FIR to show as to when and where occurrence had taken place---FIR had been registered after inordinate and unexplained delay of two and half years---Passports were in possession of complainants from whose custody same had been recovered---No other similar case was found registered against accused---Section 17 of Emigration Ordinance, 1979 provided imprisonment fo term up to five years, or with fine, or with both; whereas S.22 of the same provided imprisonment up to fourteen years, or with fine, or with both---Insertion of word 'or' in both provisions meant that imprisonment was not mandatory, and the same had been left to the discretion of court---Exercise of discretion would be determined by trial court after recording of evidence---Accused was no more required for further investigation---Accused was admitted to post-arrest bail---Bail application was allowed accordingly.

Rana Muhammad Arshad for Petitioner.

Tauseef Ijaz Malik for the Complainant.

Ms. Ummul Baneen, DDPP with Ajmal Hussain S.I.(FIA) for the State.

2015 P Cr. L J 1619

[Lahore]

Before Manzoor Ahmad Malik, J

SHER MUHAMMAD---Appellant

versus

The STATE---Respondent

Criminal Appeal No.121-J of 2009, heard on 12th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b)(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Matter was reported to the Police promptly, within thirty minutes after the occurrence---Post-mortem examination on the dead body of the deceased, was conducted on the same day just after five hours of the occurrence which established presence of the complainant at the place of occurrence---Name of one prosecution witness was not mentioned in the FIR, while other one did not state that he was present at the time of occurrence---No reliance could be placed on the testimony of said witnesses---Complainant was the resident of the same street where occurrence took place---Promptitude in lodging of FIR, having established the presence of the complainant at the place of occurrence, his statement was worthy of credence---No adverse inference could be drawn against the prosecution by non-production of two prosecution witnesses---One of said witness was given-up as won-over, whereas to the extent of other one, it was observed that it was the prerogative of the prosecution to produce as many witnesses as it thought appropriate---If the defence believed, that said witnesses might not have supported the prosecution case, they might have been examined as defence witnesses, but no effort was made by the defence to summon those witnesses for evidence---Ocular account furnished by the complainant to the extent of accused was fully supported by the medical evidence---Prosecution failed to prove the motive set out in the FIR---Recovery of wooden slab (Phatti) at the instance of accused, was inconsequential, as there was no mention in the recovery memo that said Phatti was stained with blood---No attesting witness of the recovery memo. was produced before the Trial Court and said Phatti was not sent to the office of Chemical Examiner or Serologist to ascertain, whether the same was stained with blood or otherwise---No corroboration, could be sought from the alleged recovery of Phatti at the instance of accused---Accused, could not claim any benefit from the acquittal of his three co-accused persons---Injury attributed to one of said co-accused was not observed during the post mortem examination---Other two co-accused were empty handed at the time of occurrence, and mere Lalkaras were attributed to them---Case of the acquitted co-accused, was entirely distinguishable from that of the accused---Motive, behind the occurrence, had not been proved---Circumstances suggested that something else had happened immediately prior to the incident which had not been brought on the record---Circumstances of the case suggested that it was a sudden flare up without any premeditation, and preplanning on the part of accused---Phatti, allegedly used by accused during the occurrence; could not be termed as a lethal weapon---Prosecution case, in circumstances, was covered under S.302(c), P.P.C. and not under S.302(b), P.P.C.---Conviction and sentence of accused under S.302(b), P.P.C., was not sustainable in the eyes of law---Accused was convicted under S.302(c), P.P.C., and sentence of life imprisonment was converted into ten years' R.I., with benefit of S.382-B, Cr.P.C., in circumstances.

Muhammad Mansha v. The State 2001 SCMR 199 ref.

Subah Sadiq Wattoo Defence Counsel appointed at State Expense for Appellant.

Nisar Ahmad Virk Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

Date of hearing: 12th March, 2015.

2015 P Cr. L J 1633

[Lahore]

Before Muhammad Anwaarul Haq, J

NADEEM MASOOD---Appellant

versus

The STATE---Respondent

Criminal Appeal No.2066 of 2012, heard on 1st June, 2015.

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

----S. 376---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Criminal Procedure Code (V of 1898), S.340(2)---Rape---Appreciation of evidence---Commission of offence---Onus to prove---Accused committed rape with complainant which resulted into birth of a minor girl---Trial Court convicted the accused and sentenced him to imprisonment for twenty years and fine---Plea raised by accused was that it was an offence of fornication as complainant was a consenting party---Validity---Accused during trial denied to have committed rape or illicit intercourse with complainant and there was only a suggestion while cross-examining victim of her evidence that "it was incorrect that I was consenting party"---Such denied suggestion alone was not enough to hold that victim was a consenting party especially when accused did not produce any evidence in his defence and even did not opt to make his statement on oath under S.340(2), Cr.P.C. to rebut prosecution case set up against them---Even consent of victim obtained by putting her in fear of death or hurt or where the man knew that he was doing sexual intercourse with a woman who was not married to him but the woman believed herself to be married to him constituted offence of rape under S.375(iii) and (iv), P.P.C.---Prosecution was duty bound to prove its case against accused beyond any shadow of doubt---Accused who had come forward with a specific plea must bring on record some material to establish the same---Conviction and sentence awarded to accused under S.376, P.P.C. by Trial Court was based on well-stated principles of appreciation of evidence---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

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

----Ss. 544-A & 545---Penal Code (XLV of 1860), S. 376---Rape---Compensation to victim of rape---Maintenance of child born as a result of rape---Accused committed rape with complainant and as a result a minor girl was born---Trial Court convicted and sentenced the accused for imprisonment for twenty years and also awarded fine but no maintenance was awarded to the minor girl---Validity---Minor baby girl born as a result of crime committed by accused was "a person" suffering mental anguish and psychological damage for her whole life, thus she was entitled for compensation provided under the law---High Court directed the accused to pay compensation under S.544-A(5), Cr.P.C. to victim child--- If fine was realized the same would be paid to victim of rape under S.545, Cr.P.C.

The State v. Md. Moinul Haque and others (2001) 21 BLD 465; Dilip v. State of Madhya Pradesh AIR 2013 (SC) Cri) 1200; Delhi Domestic Working Women's Forum v. Union of India and others 1995 (1) R.C.R. (Criminal) 194 (1995) 1 SCC 14; Sahih Muslim (Vol.4) Hadith [4432], pp.471-472; Mst. Nusrat v. The State 1996 SCMR 973 and Mokha v. Zulfiqar and 9 others PLD 1978 SC 10 rel.

Ghulam Farid Sanotra for Appellant.

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

Ahsan Ullah Ranjha for the Complainant.

Date of hearing: 1st June, 2015.

2015 P Cr. L J 1705

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

BASHIR and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeals Nos.1029 and 1031 and Criminal Revision No.583 of 2005, heard on 6th May, 2015.

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

----Ss. 302(b), 337-L(2), 148 & 149---Qatl-i-amd, causing hurt, rioting---Appreciation of evidence---Delay, caused in lodging crime report, was quite natural, and the same in no way imprinted any negative inference on the prosecution version---Presence of the complainant and his mother along with the deceased, as well as purpose of their visit in the morning time, was quite natural, which appealed to reason---Both said prosecution witnesses had fully substantiated the prosecution case by giving minute details qua presence of the complainant in the field for ploughing---Story, disclosed by prosecution witnesses, was convincing and appealed to reason, and it could not be assumed that any of them tried to exaggerate the prosecution story---Occurrence had taken place in daylight and parties were known to each other, which fact ruled out any possibility of misidentification of accused---Mother of the complainant had herself sustained injuries during the occurrence---Lady had advanced the prosecution case in a natural way to the extent of accused and there was not a single circumstance available on record from where it could be assessed that she had made any effort to exaggerate the prosecution story regarding culpability of accused---Both prosecution witnesses were closely related inter se, and with the deceased---Mere close relationship, would not discard their testimony, if otherwise the same was reliable, trustworthy, appealing to reason and corroborated by independent circumstances---Non-production of certain prosecution witnesses, would not create any serious dent in the prosecution version---Quality and not quantity of evidence was sine qua non for establishing guilt against a person facing charge---Medical evidence, substantiated the prosecution case, especially the locale of injuries on the person of deceased and time between death and post-mortem examination was corroborated by recovery of 'Sota'---Said Sota, was sent to the office of Chemical Examiner and Serologist, and according to their report it was stained with human blood---Accused could not prove that occurrence was result of free fight---Prosecution had substantiated its case through leading evidence by the most natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version---Trial Court was well justified in passing conviction against accused, which could not be interfered with---Conviction, and sentence recorded against accused in the impugned judgment was maintained, in circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99; Talib Hussain and others v. The State and others 2009 SCMR 825; Abid Ali and 2 others v. The Stae 2011 SCMR 208; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Takdir Samsuddin Sheikh v. State of Gujarat and another 2012 SCMR 1869 rel.

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

----Ss. 302(b), 337-L(2), 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, causing hurt, rioting---Appeal against acquittal---Reappraisal of evidence---Four co-accused, in the case having been acquitted by the Trial Court, complainant filed appeal against acquittal---Said appeal to the extent of three accused was not pressed by the complainant, while fourth one was under notice---Said fourth co-accused was named in the crime report with the role of inflicting sota blow on the backside of head of the deceased, but during course of investigation, Investigating Officer found that accused was not present at the place of occurrence at the relevant time---Nothing was recovered on his pointation during course of investigation---Trial Court, in circumstances, was well within its jurisdiction in observing that prosecution case lacked sufficient material which could be made basis for conviction of any person in a criminal case, particularly when to the extent of three accused persons appeal against acquittal was withdrawn---After acquittal, presumption of innocence would become double in favour of accused---No compelling circumstances prompting High Court were available to interfere in the acquittal already recorded by the Trial Court---Appeal against acquittal to the extent of one accused filed by the complainant, was dismissed, in circumstances.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Usman Naseem for Appellant.

Tariq Javed District Public Prosecutor for the State.

Abid Saqi and Nazeer Ahmed Ranjha for the Complainant.

Shaigan Ejaz Chadhar for Respondent No.4 (in Crl. Appeal No.1031 of 2005).

Date of hearing: 6th May, 2015.

2015 P Cr. L J 1729

[Lahore]

Before Muhammad Anwaarul Haq and Shahid Bilal Hassan, JJ

MUHAMMAD SARWAR and another---Appellants

versus

MUHAMMAD RIAZ and another---Respondents

Criminal Appeal No.1104 and Murder Reference No.222 of 2013, heard on 9th October, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd---Appreciation of evidence---Compromise---Father and mother of the deceased, who were his only legal heirs, had compounded the offence of murder of their son and had forgiven the accused in the name of Allah waiving their right of Qisas and Diyat---Legal heirs of the deceased had shown no objection to acquittal of the accused---Trial Judge had shown his satisfaction with regard to the genuineness of the compromise---Compromise had been arrived at between the parties without any duress and coercion and was in the interest of the parties so that they might forget the existing estrangement and could live in harmony and peace---Permission to compound the offence was granted---Conviction and sentence, recorded against accused by the Trial Court, were set aside and the accused was acquitted of the charge, and was ordered to be released, in circumstances.

Umar Hayat-1 for Appellants.

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

Nemo for the Complainant.

Date of hearing: 9th October, 2014.

2015 P Cr. L J 1747

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

MOHSIN ALI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.445 of 2010 and Murder Reference No.364 of 2011, heard on 9th December, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Matter was reported to the Police without any deliberate or conscious delay---Time and place of occurrence, was not denied---Complainant, who was sole witness, remained consistent and firm regarding his stance qua the role of accused in perpetrating the alleged offence---Complainant remained stuck to his stance; and despite the lengthy cross-examination defence could not shake his confidence; and nothing beneficial to the accused could be surfaced---Statement, given by the eye-witness, was straightforward, coherent and trustworthy---Complainant had sufficiently explained the reason for his being present at the scene of occurrence---Complainant, though was the real brother of the deceased yet he was having no motive to falsely implicate accused---Real brother could not be expected that he would let the real culprit go scot-free by implicating and giving the role of causing fatal firearm injury to an innocent person---Even otherwise, substitution in such like cases, was a rare phenomenon---Accused was the only person who had been assigned the role of firing during the incident---Conviction could be based upon the evidence furnished by a solitary witness and it was not the quantity that mattered rather quality of evidence weighed with the court while evaluating the evidence---Two eye-witnesses, were given up, firstly, they were won over; and secondly, the prosecution had the prerogative to examine witnesses, who were available and considered necessary to prove a fact---No adverse inference could be drawn against prosecution---Ocular account furnished by the solitary witness, which was coherent and confidence inspiring which was fully corroborated by the medical evidence---Parcel of blood-stained earth, was sent to the office of Chemical Examiner for analysis, after about nine days from taking it into possession, while crime empty was sent to Forensic Science Laboratory, one day after the formal arrest of accused, without any explanation for such delay which had rendered evidence of recovery of pistol doubtful; and positive report of Forensic Science Laboratory, had lost its evidentiary value---Alleged recovery of pistol could not provide corroboration to the rest of the prosecution case---Prosecution failed to prove the motive part of the occurrence---Prosecution, had successfully proved its case against the accused and Trial Court had rightly convicted accused through impugned judgment---Mitigating circumstances existed in favour of accused, firstly, alleged recovery of crime weapon at the instance of accused had been declared inconsequential to the prosecution case, secondly, prosecution had failed to prove motive---Alternative sentence of imprisonment for life to accused in view of said extenuating reasons, would meet the ends of justice---Maintaining conviction of accused, his sentence was altered from death to imprisonment for life---Benefit of S.382-B, Cr.P.C., was also awarded to accused.

Ijaz Ahmad v. The State 2009 SCMR 99 and Ali Sher v. The State 2008 SCMR 707 ref.

Mazhar Ali v. The State 2005 SCMR 523; Saeed Khan and 5 others v. The State and another 2008 SCMR 849; Israr Ali v. The State 2007 SCMR 525 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

(b) Criminal trial---

----Evidence---Conviction could be based upon the evidence furnished by a solitary witness, if it was of unimpeachable character and confidence inspiring---Not the quantity that matter, but quality of evidence would weigh with the courts, while evaluating the evidence.

Muhammad Mansha v. The State 2001 SCMR 199 ref.

Fawad Malik Awan for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Khalid Saeed Akhtar for the Complainant.

Date of hearing: 9th December, 2014.

2015 P Cr. L J 1758

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SHARAFAT---Petitioner

Versus

ADDITIONAL SEESSIONS JUDGE/JUSTICE OF PEACE and others---Respondents

Writ Petition No.10581 of 2015, heard on 12th May, 2015.

Transplantation of Human Organs and Tissues Act (VI of 2010)---

----Ss. 10 & 14--- Penal Code (XLV of 1860), S.334--- Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Removal of kidney---Cognizance of offence---Principle---Grievance of respondent was that petitioner who was a doctor fraudulently removed kidney of his servant on the pretext to conduct appendix surgery---On application filed by respondent, Ex-officio Justice of Peace directed to register a case against petitioner---Validity---Cognizance of offense under S.14 (2) (a) and (b) of Transplantation of Human Organs and Tissues Act, 2010, could be taken by Court only on the complaint of Monitoring Authority or its Secretary or on the complaint of an "aggrieved person" who had given notice of not less than fifteen days to Monitoring Authority, of alleged offence and of his intention to lodge a complaint---Special law (Act) had provided special procedure for initiation of criminal proceedings against accused---When a thing was provided to be done in a particular manner, it was to be done in that manner and if it was not so done, it was illegal---Application moved by respondent who was not "aggrieved person" in any manner was not maintainable before Ex-officio Justice of Peace---High Court in exercise of powers under Art.199 of the Constitution, set aside order passed by Ex-officio Justice of Peace as the same was patently illegal and ultra vires---High Court advised that aggrieved persons could adopt remedy provided under the law---Petition was allowed under the circumstances.

Ms. Iqra Arshad Virk for Petitioner.

S. Tayyab Mahmood Jafri for Respondent No.3.

Waseem Mumtaz Malik, Addl. A-G. and Aas Muhammad Sub-Inspector for the

State.

Date of hearing: 12th May, 2015.

2015 P Cr. L J 1787

[Lahore]

Before Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ

Mian QURBAN ALI---Appellant

Versus

The STATE through Director-General, NAB---Respondent

Criminal Appeal No.1598 of 2015, decided on 16th September, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 31-A & 32---Constitution of Pakistan, Art. 10-A---Conviction in absentia---Principle of fair trial, applicability of---Limitation for filing appeal against conviction, commencement of---Date of knowledge of conviction---Accused was convicted in absentia by Trial Court vide order dated 2-9-2003, whereas, appeal against such order was filed on 10-9-2015---Plea raised by accused was that on 1-9-2015, when he was sent to jail on judicial remand, only then he got knowledge of order of conviction---Contention of the National Accountability Bureau was that appeal was barred by limitation---Validity---Provisions of S.31-A of National Accountability Ordinance, 1999 were against the mandate of Art. 10-A of the Constitution---Accused did not participate in proceedings in reference filed against him, as such period of limitation was to be computed from the date of knowledge of accused which according to memorandum of appeal was 1-9-2015---High Court set aside the conviction and sentence awarded to accused in his absence---Appeal was allowed.

Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889; Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445; Writ Petition No. 4048 of 2010 and Writ Petition No. 2154 of 2010 ref.

Muhammad Zain Qazi for Appellant.

M. Farhad Tirmazi, Senior Special Prosecutor for NAB.

2015 P Cr. L J 1800

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD MUSHTAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 375 of 2007, heard on 18th May, 2015.

(a) Criminal trial---

----Administration of justice---Principles---Each criminal case has its own peculiar facts and circumstances and that has to be weighed on judicial parlance, while taking into consideration all facts and circumstances brought forth.

(b) Criminal trial---

----Interested witness---Evidence---Scope---Statement of interested and inimical witness requires independent corroboration to base conviction upon the same.

Niaz v. The State and Muhammad Hussain v. The State PLD 1960 SC 387; Nazir and others v. The State PLD 1962 SC 269; Ata Muhammad and another v. The State 1995 SCMR 599; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Abdul Ghaffar v. The State PLD 2007 SC 467 and Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 200---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular account---Complainant was dissatisfied with police investigation and preferred private complaint in which accused was convicted and sentenced to imprisonment for life while his co-accused was acquitted of the charge---Validity---Stance of prosecution was that deceased was done to death by accused along with his co-accused (since acquitted) while causing hatchets/Chhura (dagger) blows but lady doctor who conducted postmortem on dead body of deceased opined in categorical terms that injuries were result of blunt weapon---Medical officer had given a definite opinion and ocular account was belied by medical evidence and such contradiction had made prosecution case doubtful---Prosecution failed to substantiate its case against accused to the hilt and Trial Court was not justified in convicting him while basing upon such untrustworthy/uncorroborated evidence, which even otherwise was full of material contradictions---Benefit of every doubt was to be extended in favour of accused and Court might err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Saeed Ahmed Shah v. The State 1993 SCMR 550; Abdul Majid alias Jaidu and others v. The State 1996 SCMR 333; Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Irshad Ahmed v. The State 2011 SCMR 1190 rel.

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

----Art. 129(g)---Criminal trial---Giving up of eye-witness---Effect---When an eye-witness is given up by prosecution being unnecessary, a negative inference can be drawn that had he appeared before Trial Court, he would have not supported prosecution version.

Lal Khan v. The State 2006 SCMR 1846 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---For extending benefit of doubt to accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Shaharyar Sheikh for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Faisal Shahzad Gondal for the Complainant.

Date of hearing: 18th May, 2015.

2015 P Cr. L J 45

[Peshawar]

Before Waqar Ahmad Seth and Malik Manzoor Hussain, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 40, 41 and 81 of 2012, decided on 16th May, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Both accused persons were arrested on the spot and recovery was made from their possession---Accused persons had not denied that they were not in possession of vehicle from which the contrabands were recovered as well as their presence in the said car at the time of recovery---Report of Chemical Examiner was in positive, which further supported the prosecution version---No mala fide or enmity had been alleged, nor brought on record against the officials, who were Investigating Officers and the witnesses of recovery memo---No material contradiction or discrepancy had been brought out on the record to shatter the credibility of prosecution evidence---Accused persons had failed to prove defence plea by producing any evidence---Trial Court, in circumstances, had rightly convicted accused persons---Controversy as to whether the contraband was 100 Kg. or 9500 grams, had made the case that of mitigating circumstances---Maintaining the conviction of accused persons, their sentence was reduced from imprisonment for life to 7 years with fine of Rs.100,000 each---Benefit of S. 382-B, Cr.P.C. extended to accused persons, remained intact.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Prosecution had failed to prove any link of two female co-accused with male accused persons, who had been convicted and sentenced---Both accused persons and said female co-accused were residents of different places---One of female co-accused was an old lady aged about 70 years, while other was 21 years old---Even accused person in their statements under S.342, Cr.P.C. had deposed that both co-accused ladies boarded the car for their treatment at Rawalpindi--- No recovery was effected from their possession; and the contrabands were recovered from rear seat and secret cavities of the car--- Prosecution had failed to establish that said co-accused were in knowledge of the narcotics, or the same was exposed to them--- From the very first day of their arrest, their plea was that they were passengers, and had no link, either with male accused, or the vehicle used in the crime--- If the contraband was lying open within the view of those co-accused, or they knew the placement of same in secret cavities, then situation would have been different---Prosecution had simply proved presence of accused (ladies) in vehicle; and mere presence of accused in vehicle would not involve them in the case---Prosecution having failed to prove its case against female co-accused, their appeal was accepted, in circumstances.

Qaisarullah v. State 2009 SCMR 579 rel.

Noor Alam Khan for Appellant.

Malik Manzoor Hussain for the State.

Date of hearing: 16th May, 2013.

2015 P Cr. L J 81

[Peshawar]

Before Assadullah Khan Chammkani and Muhammad Daud Khan, JJ

SHAHABUDDIN---Appellant

Versus

MUHAMMAD HASHIM KHAN and another---Respondents

Criminal Appeal No. 88-B of 2012, decided on 25th March, 2014.

(a) Criminal trial---

----Witness---Related witness---Testimony of closely related witness---Scope--- Corroboration--- Necessity--- Testimony of closely related witness, must get corroboration through corroboratory evidence, which was to come from unimpeachable source---Conviction could be recorded on the basis of statement of a solitary witness, provided same was trustworthy, confidence inspiring and corroborated by circumstantial evidence; because it was the quality and not the quantity of the evidence, which mattered in criminal dispensation of justice.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Conduct of autopsy on the dead body of the deceased some 40 minutes prior to report of the complainant, had created doubts in the prosecution case---Time of occurrence, was also in conflict with medical evidence---Complainant, had not advanced any motive in his initial report, but during his court statement, in order to bring in line the occurrence with other circumstances of the case, by making dishonest improvement, disclosed a motive against accused, which had been negated by Investigating Officer---Circumstances and facts of the case, as well as material contradictions in the ocular account of the complainant, concluded that the occurrence had not taken place in presence of the complainant, and in the mode and manner as alleged by him---Accused was a man of advance age with weak eyesight, and could not walk without the help of another person; it was unbelievable that such a person would be able to hold Kalashnikov and make a murderous assault---Prosecution had failed to bring home the guilt of accused through direct ocular evidence---In absence of direct evidence, the circumstantial evidence in the shape of recovery of blood from the spot, blood-stained garments of the deceased, Forensic Science Laboratory report, being corroborative pieces of evidence, would be of no help to the prosecution---Prosecution, could not seek support from factum of abscondence of accused; when eye-witnesses had not established his presence at the spot; and his testimony had been disbelieved being pregnant of doubts and suffering from material contradictions---Trial Court had rightly acquitted accused by extending him benefit of doubt, after proper appraisal of evidence, to which no exception could be taken---Appeal against acquittal was dismissed, in circumstances.

(c) Criminal trial---

----Abscondence of accused---Scope---Mere absconsion was not a conclusive proof of guilt of accused person; it was only a suspicious circumstance against an accused that he was found guilty of the offence---Abscondence could not take the place of proof---Absconsion of accused, could be consistent with the guilt or innocence of accused, which was to be decided keeping in view over-all facts of the case---Mere absconsion of accused, could not be made the basis for conviction.

Rohtas Khan v. The State 2010 SCMR 566 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---Not so many doubts were needed in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused---Islamic jurisprudence enshrined the rule that it would be better to acquit hundred culprits than convicting one innocent soul; which had been transformed into the form of the principle that "acquitting by error, would be better than convicting by error"---Said commandment had evolved into the theory of benefit of doubt, which, invariably, was extended to accused for safe administration of criminal justice.

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

----S. 417(2-A)---Appeal against acquittal---Acquittal, effect---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court, while sitting in appeal against acquittal, must be 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 bare misreading or non-reading of any material evidence.

Muhammad Anwar Khan Miadad Khel for Appellant.

2015 P Cr. L J 126

[Peshawar]

Before Abdul Latif Khan, J

GUL KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 37 of 2014, decided on 3rd July, 2014.

Penal Code (XLV of 1860)---

----Ss. 419 & 205---Cheating by personation, false personation for purpose of act or proceeding in suit or prosecution---Appreciation of evidence---Sentence, reduction in---Accused was proclaimed offender in a case registered against him---Local Police conducted raid on house of accused, and during body search of accused, his National Identity Card was recovered, wherein his father's name was mentioned as 'Jamil'; whereas actual name of his father was 'Bacha Rehman'---Accused was using said Identity Card to be not the son of 'Bacha Rehman'---Prosecution, in circumstances, had succeeded to establish the guilt of accused under S.419, P.P.C., beyond any shadow of doubt---Section 205, P.P.C., was not attracted in the case of accused, because, for the constitution of offence under that section, act must have been done in a suit or criminal proceedings; and when the offence was alleged to have been committed in, or in relation to any proceedings in any court; no court would take cognizance of the offence, except on complaint in writing, as required under S.195(1)(b), Cr.P.C., and procedure as provided in Ss.195 & 476, Cr.P.C., should be adopted---Quantum of sentence under S. 419, P.P.C. in view of facts and circumstances of the case, also required consideration---Conviction and sentence recorded by the Trial Court under S.205, P.P.C., were set aside, and accused was acquitted of the charge under said section of law, while conviction and sentence under S.419, P.P.C., were reduced to two years, in circumstances.

Muhammad Yar Malezai for Petitioner.

Muhammad Javed, A.A.-G. for the State.

Date of hearing: 3rd July, 2014.

2015 P Cr. L J 146

[Peshawar]

Before Qaiser Rashid Khan and Musarrat Hilali, JJ

INAYATULLAH ABDALI---Petitioner

Versus

DIRECTOR-GENERAL NATIONAL ACCOUNTABILITY BUREAU, KPK and 2 others---Respondents

Writ Petition No. 1803-P of 2014, decided on 23rd July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Bail, refusal of---Voluntary return by co-accused--- Effect--- Accused was Managing Director of a construction company and he was arrested for constructing substandard road---Validity---High Court under constitutional jurisdiction was not supposed to go into technicalities, on ground alleged substandard condition of road as the same would be looked into by Trial Court during the course of recording of evidence---Two members of troika i.e. project director and consultant accepted their guilt and also coughed up their respective shares by way of Voluntary Return---Prima facie case existed against accused as well which squarely fell within the domain of corruption and corrupt practices and he was disentitled to concession of bail--- Petition was dismissed in circumstances.

2014 PCr.LJ 186; 2014 MLD 276 and 2011 MLD 602 ref.

Omar Farouk Adam, Barrister Kamran Qaiser and Khalid Anwar Afridi for Petitioner.

Muhammad Jamil Khan, D.P.-G. and Syed Azeem Dad, ADPG for Respondents.

Date of hearing: 23rd July, 2014.

2015 P Cr. L J 169

[Peshawar]

Before Mrs. Irshad Qaiser, J

GHAFFAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.502 of 2011, decided on 8th October, 2012.

(a) Criminal trial---

----Conviction--- Basis of--- Conviction must be based on unimpeachable evidence and certainty of guilt; and any doubt arising in the prosecution case, must be awarded in the account of accused.

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

----Ss. 324 & 337-A(iii)---Attempt to commit qatl-i-amd, causing Shajjah-i-Hashimah--- Appreciation of evidence--- Report of Investigating Officer and the medical report contradicted each other---Stamp of injuries on the person of victim, could prove his presence on the spot, but those injuries, in no way, would certify that whatsoever was stated by him or his companion, was the whole truth---Statements of prosecution witnesses, did not tally with the assertion of the F.I.R.---Complainant could not authenticate his presence at the time of occurrence---Complainant admitted blood feud of his family with others in the locality, which militated against the prosecution case; and cast thick cloud of doubt over the assertion made by him in his statement and in the F.I.R.---Facts had revealed that no blood feud existed between the parties; and there was no motive for accused to commit the offence---Statement of prosecution witness being full of afterthought and improvements, had led to the inference that he was not present on the scene of occurrence---Occurrence had not taken place in the manner as described in the murasila and F.I.R.---No recovery or discovery had been effected---Abscondence of accused, would do little to properly medicate the flaws in the prosecution evidence, when it was found to be discrepant---Accused had been convicted and sentenced under S.337-A(iii), P.P.C. by the Trial Court, but no charge had been framed in that behalf---Conviction and sentence under S.337-A(iii), P.P.C., could not be sustained under any canons of law---Case suffered with manipulations and distortion from the very start---Charge against accused could not be held to have been proved beyond any shadow of reasonable doubt and it would not be in accord with safe administration of justice to maintain conviction of accused on that quality and quantity of evidence---Convictions and sentences recorded by the Trial Court, were set aside and accused was acquitted and set free, in circumstances.

Kamal Din v. Muhammad Sharif 1987 SCMR 1264 ref.

Ghulam Mohiuddin Malik for Appellant.

Fazal Rehman, A.A.-G. for the State.

Khizar Hayat Khazana for the Complainant.

Date of hearing: 8th October, 2012.

2015 P Cr. L J 211

[Peshawar]

Before Yahya Afridi, J

Dr. MOMIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.583 of 2013, decided on 12th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Bail, refusal of---Accused, prima facie, alone had been directly charged by the deceased in his 'dying declaration' for effective firing during daylight occurrence---Accused, subject to proof by the prosecution during the trial, was connected with the commission of the offence---Case for post arrest bail, in favour of accused, was not made out in circumstances---Plea of "alibi", taken by accused for being arrested in an other criminal case, had not been accepted by the Investigating Officer in its totality---Any finding, rendered by High Court in that respect at bail stage, would not be appropriate, and would surely prejudice the case of the parties during trial---Challan in the case was complete, and the trial was to commence---Bail application was dismissed, in circumstances.

Said Akbar and another v. Gul Akbar and another 1996 SCMR 931 and Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1854 ref.

Ishtiaq Ibrahim for Petitioner.

Alamgir Durrani, DAG for the State.

Shah Nawaz Khan for the Complainant.

Date of hearing: 12th July, 2013.

2015 P Cr. L J 248

[Peshawar]

Before Assadullah Khan Chammkani and Ikramullah Khan, JJ

UMAR GUL and another---Appellants

Versus

SAMAR KHAN and another---Respondents

Criminal Appeal No. 822-B of 2010, decided on 24th June, 2014.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Both, complainant and prosecution witness, were closely related to the deceased---Complainant in his statement, besides reiterating the story, set forth by him in his initial report, had introduced some new events and circumstances to bring his statement in line with other circumstances of the case---Site plan, also contradicted the stance of injured complainant---Report of the complainant which was highly doubtful, had created serious doubts in the prosecution case---Alleged, eye-witness of the incident had totally shattered the prosecution case by introducing some new story---Both, alleged eye-witnesses, had failed to prove the occurrence in the mode and manner as alleged in the report---Said eye-witnesses had suppressed the actual facts of the incident---One impartial witness having been abandoned for no good reason, adverse inference would be drawn against the prosecution to the effect that had he been produced, would not have supported the prosecution case---Statement of injured witness, supported by medical evidence, would be sufficient for recording conviction, provided the same rang true and was trustworthy---Evidence of injured witness, was not of unimpeachable character and corroborated by other strong circumstances of the case---Certain facts, though had established the murder of the deceased with firearm, and the injuries of the injured to be the result of firearm, but as to who committed the occurrence, was shrouded in mystery---Testimony of the complainant and prosecution witness being in gross conflict with each other, could not be believed and relied upon---In absence of any credible evidence to support the prosecution version, abscondence of accused, itself would not be sufficient to prove the guilt of accused---One substantial doubt, was enough for acquittal of accused---Trial Court had not evaluated the evidence in its true perspective, and reached to an erroneous conclusion by holding accused persons guilty of the offence---Impugned judgment of the Trial Court, being not sustainable, conviction and sentence of accused persons were set aside, and they were acquitted of the charge levelled against them.

Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279 and Asadullah's case PLD 1971 SC 541 rel.

(b) Criminal trial---

----Witness--- Relationship of witness with the deceased or complainant---Effect---Mere relationship of a witness with the deceased or complainant, would not be sufficient to discard his/her testimony, if his/her statement was straightforward, confidence inspiring, and got corroboration from other strong piece of evidence, and circumstances of the case---Statements of such like witnesses were required to be scrutinized with great care and caution.

(c) Criminal trial---

----Witness---Evidence of injured witness---Test of veracity of injured witness---Mere stamp of injuries on the person of a witness, would not be a proof of the fact that whatever he deposed, would be the truthful account of the events---Veracity of such witness was to be tested from the circumstances of the case; and his own statement, whether the same fitted in the circumstances of the case, or otherwise---For recording conviction, strong and corroborated evidence of unimpeachable character was required.

(d) Criminal trial---

----Benefit of doubt---Scope---For recording conviction, strong and corroborative evidence of unimpeachable character was required---Finding of guilt against accused, must not be based on probabilities to be inferred from evidence---Such finding must rest, surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught---Absolute certainty would seldom come into play in forming an opinion qua guilt or innocence of a person---Courts by means of proper appraisal of evidence, must be vigilant to dig out truth of the matter to ensure that no injustice was caused to either party---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, benefit of the same; must be extended to accused, not as a grace or concession, but as a matter of right---Not so many doubts in the prosecution case were required, rather any reasonable doubt arising out of prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused---Better to acquit hundred culprits than convicting one innocent soul--- Acquitting by error would be better, than convicting by error.

(e) Criminal trial---

----Abscondence of accused---Scope---Abscondence alone, could not be substitute for real evidence---Abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconded accused---Mere abscondence of accused, would not be enough to sustain his conviction.

Farman Ali and others' case PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

Shabir Hussain Gugyani for Appellants.

Mujahid Ali Khan, A.A.-G. for the State.

S. Abdul Fayaz Khan for the Complainant.

Date of hearing: 24th June, 2014.

2015 P Cr. L J 308

[Peshawar]

Before Mrs. Irshad Qaisar and Rooh-ul-Amin Khan, JJ

ZAHID HUSSAIN---Petitioner

Versus

MUHAMMAD HASSAN SALEEM VATO CEO, NOWSHEHRA CANTT. and 6 others---Respondents

Writ Petition No. 3303 of 2011, decided on 18th December, 2012.

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

----Preamble---Object, scope and purpose of Illegal Dispossession Act, 2005---Act is special law providing remedies to those who have been illegally dispossessed from property---Said Act has been specifically enacted to protect rights of owner and lawful occupant from property grabbers and to discover greedy person who snatches and grabs properties forcibly or tactfully---Protection has been provided to lawful owners and occupiers of immovable properties from their illegal and forcible dispossession.

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

----S. 3---Complaint---Cognizance, taking of---Pre-conditions---Duty of complainant---For taking cognizance of complaint under S. 3 of Illegal Dispossession Act, 2005, Trial Court is under legal obligation to see that (i) whether complainant was in possession of disputed property under proper legal cover; (ii) whether he has been dispossessed by use of force; (iii) whether accused has got no title in disputed property; (iv) whether accused party belongs to group of land grabbers and (v) whether complaint discloses unlawful act and criminal intent---Complainant, at initial stage, has to satisfy court about existence of every ingredient of alleged offence---If complainant succeeds to persuade and convince court and make out a triable case, court should proceed with the matter by taking cognizance of offence under S.3 of Illegal Dispossession Act, 2005---Without the same, Trial Court is not obliged to summon accused and record evidence like ordinary criminal trial.

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

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Illegal dispossession---Qabza group and land grabbers---Proof---Complainant invoked aid of court on the strength of an unfounded uncertain and doubtful deed---Trial Court dismissed the complaint---Validity---Except deed in question no iota of evidence was available on record to disclose criminal intent of accused persons---In absence of any material to justify cognizance, Trial Court was not obliged to proceed with the case and could dismiss the same without proceeding to order inquiry and investigation and without summoning the accused---Complainant failed to disclose any unlawful act or criminal intent on the part of accused persons, which were pre-conditions for constitution of offence under S.3 of Illegal Dispossession Act, 2005---On the day of alleged occurrence, complainant was not in actual physical and lawful possession of disputed property and accused party did not dispossess him form the same--- High Court declined to interfere in the judgment passed by Trial Court---Petition was dismissed in circumstances.

Waqar Ali and others v. The State through Prosecutor/Advocate-General Peshawar and others PLD 2011 SC 181 rel.

Muhammad Atteeq Butt for Petitioner.

Hamad Ali Shah for Respondents.

Date of hearing: 18th December, 2012.

2015 P Cr. L J 332

[Peshawar]

Before Abdul Latif Khan, J

HASSAN ALI---Petitioner

Versus

BAKHT SAWAB and another---Respondents

Criminal Revision No.27 converted into Criminal Miscellaneous Quashment Petition No.23 of 2014, decided on 11th July, 2014.

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

----Ss. 200, 201, 202, 203 & 204---Private complaint, dismissal of---Scope---Private complaint could be dismissed at preliminary stage under Ss.203 & 204(3), Cr.P.C.---Any court after recording statement of complainant under S.200, Cr.P.C., could, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against; and either inquire into the case itself, or direct any inquiry or investigation to be made in the matter under S.202, Cr.P.C.; and on receipt of inquiry report, if the court was satisfied that prima facie, case was made out for issuance of process, it would be legally competent to issue process, or decline issuance of process by dismissing the complaint.

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

----Ss. 200, 203, 204 & 561-A---Sharia Nafaz-e-Adal Regulations, 2009, Para. 10(8)---Penal Code (XLV of 1860), Ss.471, 468, 420 & 419---Using as genuine a forged document, forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, cheating by personation---Procedure for private complaint---Judicial Magistrate, after recording statement of complainant under S.200, Cr.P.C., marked the complaint to S.H.O. concerned for inquiry and report; and on receipt of report, summoned accused, who in compliance of process attended the court---After more than four months, complaint was again entrusted to Inquiry Officer for proper inquiry; who submitted his report---On receipt of inquiry report, Judicial Magistrate was required either to dismiss the complaint under S. 203, Cr.P.C., or issue process under S. 204, Cr.P.C., but instead, the Trial Magistrate directed the parties to submit lists of witnesses, and fixed the case for submission of lists of witnesses and recording evidence of complainant but without recording evidence of complainant, dismissed the complaint, which was not the mandate of Criminal Procedure Code---Where the court had recorded statement under S. 200, Cr.P.C., and after finding prima facie case took cognizance of the matter, then procedure mentioned in Chapter XVII, Cr.P.C., would be followed---Revisional Court had committed no wrong in remanding the complaint to Trial Court for decision afresh.

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

----Ss. 200 & 561-A---Penal Code (XLV of 1860), Ss.471, 468, 419 & 420---National Database and Registration Authority Ordinance (VIII of 2000), Ss.30(1)(2) & 31---Sharia Nifaz-e-Adal Regulations, 2009, Paragraph 10(8)---Using as genuine a forged document, forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, cheating by personation---Complaint, competency of---Quashing of order---Competency of complaint filed under S.200, Cr.P.C. was objected to on the ground that complainant was not competent to file complaint for the offence relating to National Database and Registration Authority Ordinance, 2000, as under S.31 of said Ordinance, no court could take cognizance of any offence under said Ordinance, except upon complaint in writing made by any gazetted officer of the authority, authorized by it in that behalf---Validity---Present complaint had been filed under the provisions of Penal Code, 1860 and not under National Database and Registration Authority Ordinance, 2000---Penalty provided for the offences enumerated in S.30(1)(2) of said Ordinance, would be in addition to any other penalty to which he could be liable under any other law; and the contents of complaint had revealed that allegations were levelled against accused regarding cheating by personation---No jurisdictional error, or legal infirmity was found in the impugned order passed by court below, whereby time barred revision was accepted, and order of Judicial Magistrate was dismissed and complaint was remanded to the lower court---Petitioner, having failed to make out his case to invoke the jurisdiction of High Court under S. 561-A, Cr.P.C., petition was dismissed, in circumstances.

Masood-ur-Rehman for Petitioner.

Abdul Hakam Khan for Respondent No.1.

M. Javed, A.A.-G. for the State.

Date of hearing: 11th July, 2014.

2015 P Cr. L J 369

[Peshawar]

Before Mrs. Irshad Qaiser and Malik Manzoor Hussain, JJ

AYUB---Appellant

Versus

MUNSIF and another---Respondents

Criminal Appeal No.409 and Criminal Revision No.94/P of 2011, decided on 4th June, 2014.

(a) Criminal trial---

----Benefit of doubt---Duty of prosecution---Prosecution, primarily was duty bound to establish guilt against accused without any shadow of reasonable doubt by producing trustworthy, convincing and reliable evidence having intrinsic worth to enable the court to draw conclusions; that the prosecution had succeeded in establishing accusation against accused; and if it would come to the conclusion that the charges so imputed against accused had not been proved beyond reasonable doubt then accused would become entitled for acquittal---If any single and slightest doubt was created, benefit of it must go to accused; and that was sufficient to discredit the prosecution story---Person charged with criminal offence, was to be saddled with the liability, only if prosecution had established its case against him beyond all reasonable doubts, otherwise not.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 3 & 150---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Hostile witness and child witness---Evidentiary value---Prosecution case mainly hinged on the testimony of a hostile witness and a child witness---Effect---Evidence of a hostile witness, could not be altogether left out of consideration, but its testimony had to be considered, with caution and care---Determining test for truthfulness of such witness was corroboration from independent source and conformity with the remaining evidence---Statement of the complainant, in absence of independent corroboration was not to be made basis of conviction of accused---Intrinsic value of such testimony of such witness had to be adjudged and it was not safe to rely upon the statement of child witness, unless corroborated as rule of prudence---Great caution was to be taken that in the evidence of child, element of coaching was not involved---In the present case no corroborative piece of evidence had been produced by the prosecution to support the statements of such two eye-witnesses---No plausible explanation was on record that as to why no other inmate of the house of complainant was examined by the prosecution in confirmation of the statement of the complainant and other prosecution witness---Non-production of any other inmate of the house by the prosecution, and subsequent change of initial version of the occurrence by the complainant, not only would seriously reflect upon the credibility of his testimony, but also create a reasonable doubt regarding the correctness of the subsequent version of homicidal death of the deceased set up by the prosecution---One of the prosecution witnesses, who was natural witness, and not related to the complainant or deceased, deposed that the deceased had committed suicide---Said witness was not cross-examined on that material point---Statement of that witness fully corroborated the medical evidence---Entire evidence of the prosecution was unreliable, unnatural and remained shrouded in mystery---Timing of report, arrival of Investigating Officer and the complainant on the spot, recovery of crime empty and drafting of Murasila, were highly doubtful, and could not be taken into consideration---Prosecution having failed to prove the case against accused beyond doubt, conviction and sentence awarded to accused; were set aside, and accused was acquitted of the charges levelled against him and he was set at liberty, in circumstances.

Amir Khan and others v. The State PLD 1985 Lah. 18 and Lal Khan v. The State 2006 SCMR 1846 ref.

(c) Criminal trial---

----Evidence, appreciation of---Quality of evidence---Withholding of natural and material witness---Effect---Quality, and not the quantity of the evidence, was the rule; but non-production of most natural and material witnesses of the occurrence, would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage, but an act of suppression of material facts; causing prejudice to accused---Act of withholding of most natural and a material witness of the occurrence, would create an impression that the witness in question, if would have been brought in court, he might not have supported the prosecution---In such eventuality, the prosecution must not be in a position to avoid the consequence.

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

----Arts. 132 & 134---Non-cross-examination of material evidence---Effect---Material evidence which came in examination-in-chief, if not examined, would be accepted as correct.

(e) Criminal trial---

----Evidence, appreciation of---Tainted evidence, non-corroboration of---One piece of tainted evidence, could not corroborate another tainted piece of evidence.

(f) Criminal trial---

----Benefit of doubt---Whenever slightest doubt was created in the judicial mind of court, that should be extended to accused, as a matter of right and not as grace.

Sabir Hussain Gigyani for Appellant.

Mian Arshad Jan, A.A.-G. for Respondents.

Date of hearing: 4th June, 2014.

2015 P Cr. L J 402

[Peshawar]

Before Nisar Hussain Khan, J

KAMRAN---Petitioner

Versus

Haji MUHAMMAD ZAHIR KHAN and another---Respondents

Criminal Miscellaneous No.968-P of 2014, decided on 11th July, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, common object---Bail, refusal of---Incident was a daylight occurrence---Accused along with his co-accused had severely thrashed the deceased with kicks, fists, sticks and handle of hatchet and the deceased succumbed to injuries within three hours---Four eye-witnesses in their statements recorded under S.164, Cr.P.C., had supported the prosecution version in respects of mode, manner and the number of assailants---Role of each accused in such-like cases, could not be segregated for the purpose of conviction and sentence---Each one of the unlawful assembly having actively participated in the crime in prosecution of their common object, they all including the accused were burdened with constructive liability---In view of the direct charge made in F.I.R., supported by medical evidence, statements of eye-witnesses and noticeable abscondence of accused, which on principle of res gestae, being immediate conduct of accused, corroborated the prosecution case as a circumstantial evidence---Case of accused did not fall within the purview of S.497(2), Cr.P.C.---Accused after occurrence, remained absconder for a period of six months without any explanation for such abscondence---Fugitive from law would lose his normal rights, and bail could be refused on the sole ground of abscondence regardless of the merits of the case---In view of direct and primary ocular account of eye-witnesses, supported by medical evidence, and unexplained noticeable abscondence accused prima facie, was connected with offence entailing capital punishment---Bail application was dismissed, in circumstances.

1980 SCMR 784; 1997 SCMR 251; PLD 2011 SC 178; 2013 SCMR 1415; 2012 SCMR 1137 and 2012 SCMR 1273 distinguished.

1981 SCMR 1092; 1979 SCMR 92; PLD 1989 SC 585; 1992 SCMR 1418; 1996 SCMR 931; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Raja Fazl ur Rehman v. Muhammad Afzal and another 2010 SCMR 179 ref.

Munawar v. The State 1981 SCMR 1092 rel.

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

----S. 497(1)(2)---Bail, grant of---Scope---Section 497(1), Cr.P.C. placed complete bar on grant of bail, in offences entailing punishment of death, imprisonment for life or imprisonment for ten years---Bail could be allowed, pursuant to S.497(2), Cr.P.C., which in unequivocal terms stipulated that if it appeared to the officer incharge of Police Station, or court, or any stage of investigation, enquiry or trial, that there were no reasonable grounds for believing that accused had committed a non-bailable offence, but there were sufficient grounds for further inquiry into his guilt, accused would be released on bail---Without recording such findings, accused could not be released on the ground of further inquiry, for almost every criminal case, in normal course, was of further inquiry---If accused was otherwise found entitled to concession of bail on merits, he would not be declined the same relief merely on ground of abscondence---When case was fixed for evidence, bail application should not be declined on merits, and the matter be left to the discretion of the Trial Court, lest it could prejudice case of either side.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Arbab Ali v. Khamiso and others 1985 SCMR 195; Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621; Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83; Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758; Shoaib Mahmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Muhammad Sadik and others v. The State 1980 SCMR 203; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Mian Dad v. The State and another 1992 SCMR 1418; Said Akbar and another v. Gul Akbar and another 1996 SCMR 931; Shahid Farooq v. The State and others 2011 SCMR 1619; Abdul Hayee and 2 others v. The State 1996 SCMR 555; Mumtaz v. The State 2012 SCMR 556; Ehsanullah v. The State 2012 SCMR 1137 and Ikram ul Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 ref.

Khwaja Muhammad Khan Gara for Petitioner.

Qazi Intekhab Ahmad for Respondent No.1.

Miss Sabiha Iqbal for the State.

Date of hearing: 11th July, 2014.

2015 P Cr. L J 416

[Peshawar]

Before Assadullah Khan Chammkani and Muhammad Daud Khan, JJ

SAMI ULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 80-B of 2011, decided on 22nd May, 2014.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Occurrence took place at night at 19:20 hours, but complainant in her report did not disclose about any source of light i.e. moon or that of electric bulb---Complainant, in order to justify identification of accused, disclosed that she identified the accused in the light of electric bulb, but her said statement did not get support from statement of Police Officials, who recorded her report---Both the prosecution witnesses, did not know about the nature and number of the firing made by accused---Ignorance of both the prosecution witnesses about duration and nature of firing, made their presence on the spot, highly doubtful---F.I.R., had been registered after preliminary investigation---Medical evidence, did not support the ocular account---Forensic Science Laboratory report of six crime empties recovered from the spot, negated the ocular account---No weapon of offence, had been recovered from any accused to send the same to the Forensic Science Laboratory for matching with the recovered crime empties---Said piece of evidence, in absence of direct evidence of the prosecution, which had been disbelieved, would not advance the case of the prosecution---Both the Prosecution witnesses had failed to point out date, day, time and other details of the alleged conspiracy against acquitted co-accused nor they had registered any case against him---No cogent evidence, having been brought on record by the prosecution to prove the guilt of co-accused, Trial Court, was justified by acquitting co-accused of the charge, to which no exception could be taken---Occurrence had not taken place in the mode and manner as alleged by the prosecution---Abscondence of accused would not be sufficient to prove the guilt of accused without credible evidence to support---Prosecution evidence was highly discrepant, full of infirmities and doubts---Trial Court had not evaluated the evidence in its true perspective---Impugned conviction and sentence recorded against accused by the Trial Court, were set aside, and they were acquitted of the charge, and were set at liberty, in circumstances.

(b) Criminal trial---

----Abscondence of accused---Scope---Abscondence, alone, could not be a substitute for real evidence and would be of no avail to prosecution, in absence of any other evidence against absconding accused---Mere abscondence of accused, would not be enough to sustain his conviction.

Farman Ali and others' case PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---One substantial doubt, was enough for acquittal of accused---Better to acquit hundred culprits, than convicting one innocent soul---Acquitting by error would be better than convicting by error.

Anwar ul Haq for Appellants.

Wali Ayaz Khan and M. Nisar Khan Sokari for Respondents

Date of hearing: 22nd May, 2014.

2015 P Cr. L J 453

[Peshawar]

Before Shah Jehan Akhundzada, J

GHULAB KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 1338-P of 2013, decided on 30th October, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping for ransom, common intention, act of terrorism---Bail, refusal of---Accused was directly charged in the promptly lodged F.I.R. for kidnapping of the victim for ransom---Victim, after his release from the clutches of accused, in his statement recorded under S.164, Cr.P.C. before the Magistrate, had charged accused along with his co-accused for his kidnapping---Statement of (minor) victim boy had clearly suggested that accused had a clear-cut, hand in the commission of the offence in question---Father of the victim, had also stated that he had paid Rs. Five lac as ransom for release of his son---Reasonable grounds were available for believing that accused was connected with the offence charged with punishment, which fell within the prohibitory clause of S.497, Cr.P.C.---No case for grant of bail having been made out, bail application of accused, was dismissed, in circumstances.

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

----S. 497---Scope of S.497, Cr.P.C.---Section 497, Cr.P.C. was divided into two parts: One part dealt with those cases which were called offences falling under prohibitory clause; and the other part thereof dealt with those offences which did not fall within the prohibitory clause---Considerations for both classes of cases were different from each other---Bail in cases which did not fall within the prohibitory clause, should be granted as a rule, and bail should be refused in an exceptional case---While considering bail in cases which fell under prohibitory clause, the court was to be more vigilant and conscious in granting the discretionary relief of bail when it found; that reasonable grounds existed for believing that accused was involved in the offence charged which fell within the prohibitory clause of S. 497, Cr.P.C.

Imtiaz-ur-Rahman for Petitioner.

Anwar Zaib for the State.

Saghir Iqbal for the Complainant.

Date of hearing: 30th October, 2013.

2015 P Cr. L J 478

[Peshawar]

Before Qalandar Ali Khan, J

NISAR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.2083-P of 2014, decided on 29th December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss. 4 & 23---Unauthorized dealing in foreign currency---Bail, grant of---Offence with which accused was charged carried maximum imprisonment of two years' or fine or both---Accused was entitled to the concession of bail as of right---Refusal of bail to accused, and his remaining in jail as a consequence thereof, would amount to double jeopardy---Accused was also entitled for bail on the ground that offence against accused fell outside the scope of prohibited clause contained in S. 497, Cr.P.C., notwithstanding the fact that mandatory provision of law contained in Foreign Exchange Regulation Act, 1947 in respect of search and recovery had, apparently, not been complied with---Accused was admitted to bail, in circumstances.

2000 MLD 357; PLD 1993 Pesh. 104; 2000 PCr.LJ 1914; 2012 PCr.LJ 1858 and 2013 PCr.LJ 1865 ref.

Arshad Hussain Yusafzai for Petitioner.

Abdul Latif Khan for the State.

2015 P Cr. L J 502

[Peshawar]

Before Nisar Hussain Khan, J

ABDUL GHAFAR---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous/Q. No.30-P with Criminal Miscellaneous No.3-P of 2014, decided on 14th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 227 & 561-A---Penal Code (XLV of 1860), Ss.364 & 365---Kidnapping or abducting in order to murder, kidnapping or abducting with intent secretly and wrongfully to confine person---Alteration of charge---Quashing of order/petition---Application of the complainant for alteration of charge from S.365, P.P.C. to S.364, P.P.C., having been turned down by the courts below, complainant had filed petition under S.561-A, Cr.P.C. for quashing of orders of two courts below---FIR clearly demonstrated that it would attract penal provision of S.364, P.P.C., triable by sessions court only and not 365, P.P.C., because it was not a simple case of abduction for wrongful confinement, nor there was allegation of wrongful confinement against accused---Deceased was drowned in the river---Neither the Investigating Officer had attended to that aspect of the case, nor the Magistrate during investigation and framing charge had considered said aspect---Magistrate simply followed the section of the law, which was inserted by the Police as per their own whims---Magistrate was not bound by the opinion of the Police, but was required to form his own opinion with regard to the offence so made out in the FIR, and the evidence so collected---Under provisions of S.227, Cr.P.C., charge could be altered or added at any time before pronouncement of the judgment---Delayed submission of application for alteration of charge, was no ground for refusal of said application, if the case for alteration was made out---Impugned orders of the courts below were set aside, and case was remitted to the Magistrate to do the needful, in circumstances.

Shakeel Ahmad Khalil for Petitioner.

Rab Nawaz Khan A.A.-G. and Rehan Saeed for Respondents.

Date of hearing: 14th July, 2014.

2015 P Cr. L J 528

[Peshawar]

Before Abdul Latif Khan, J

ABDUL QAYUM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 52-D of 2012, decided on 10th December, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Criminal Procedure Code (V of 1898), Ss.382-B & 544-A---Qatl-i-amd---Appreciation of evidence---Statements of witnesses corroborated the FIR.---Ocular account was natural---No enmity on the part of witnesses to falsely implicate the accused was proved---Single accused was charged with specific role of one firearm with no chance of substitution---FIR was promptly lodged---Empty was recovered---Identification of accused was not doubtful as parties knew each other and belonged to the same village---Empty was recovered from the point where presence of accused was shown in the site plan---Medical evidence corroborated ocular account---Absconcion remained unexplained---Trial Court appreciated the evidence properly---Appeal of accused was dismissed.

Saifur Rehman Khan for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Rab Nawaz Awan for the Complainant.

Date of hearing: 10th December 2013.

2015 P Cr. L J 554

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SAHIBZADA---Appellant

versus

The STATE and 2 others---Respondents

Criminal Appeal No. 114 of 2011, decided on 23rd April, 2014.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifa, common intention---Appreciation of evidence---Benefit of doubt---Accused and absconding co-accused, initially were charged by the complainant in his report with no specific role---Later on, complainant after discharge from hospital, recorded supplementary statement, after eighteen days of the occurrence, wherein he assigned specific role to each accused---Complainant in supplementary statement had made complete departure from the contents of initial report---Complainant and prosecution witness had made deliberate and dishonest improvements in their statements to strengthen the prosecution case---Said statements had lost credibility and evidentiary value---Statement of injured prosecution witness was recorded by the Police after eighteen days of the occurrence, and no explanation was offered by the prosecution for such delay---Contradictions were noticed in the statements of prosecution witness---Eye-witnesses were relative inter se---Mere relationship, though was not sufficient to discard testimony of a witness, but real test for acceptance of a statement was as to whether the statement of a witness was in consonance with the probabilities, whether it fitted in with the other evidence; and whether it inspired confidence---Complainant and prosecution witness, though had stamp of injuries, and their presence on the spot was not disputed, but that fact alone, could not be considered sufficient to hold that they had spoken the whole truth---Mere injuries on the person of witnesses, was not a yardstick for determining the truthfulness or falsehood of a witness---Every injured witness would not speak truth nor every unhurt eye-witness would tell a lie---Factum of the presence of a witness being natural, would establish his presence on the spot, but would not take the prosecution case any further---Ocular account produced by the prosecution was not worthy of credence, and occurrence had not taken place in the mode and manner advanced by the prosecution---Complainant in his report had not disclosed the type of weapon, which accused was carrying at the relevant time---Crime empties, allegedly recovered from the spot were not sent to Forensic Science Laboratory---Testimony of interested witnesses, was not corroborated by independent evidence---Prosecution having failed to prove the guilt of accused through unimpeachable ocular testimony, convictions and sentences awarded to accused, by the Trial Court, were set aside and he was acquitted extending him the benefit of doubt and he was set free, in circumstances.

Muhammad Sadiq's case PLD 1960 SC 223; 1984 SCMR 930; 1993 SCMR 550; 1998 SCMR 570; 2008 SCMR 1221; Rahat Ali's case 2010 SCMR 584; Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639; Haroon alias Harooni v. The State and another 1995 SCMR 1627; Muhammad Saleem v. The State 2010 SCMR 374; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Pervez and others's case 2007 SCMR 670 and Rohtas Khan v. The State 2010 SCMR 566 ref.

(b) Criminal trial---

----Witness---Improvement or deviation made by eye-witnesses in their statements---Effect---Improvement or deviation made by eye-witness in order to strengthen prosecution case, would lose his credibility and evidentiary value---When a witness made improvement changing his version in order to bring in line his testimony, with the prosecution story, if found to be deliberate and dishonest, would cause serious doubt on his veracity.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 ref.

(c) Criminal trial---

----Witness---Disbelieving a witness---For disbelieving a witness, it was not necessary that there should be numerous infirmities---If there was one infirmity which impeached the credibility of the witness, that could make the entire statement doubtful.

(d) Criminal trial---

----Abscondance of accused---Effect---Mere abscondance, would not prove guilty mind---Abscondance could be used only as a corroborative piece of evidence, which could not be read in isolation, but it had to be read along with substantive piece of evidence.

(e) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused---Even a single circumstance creating reasonable doubt, was sufficient for the acquittal of accused.

Ishtiaq Ibrahim for Appellant.

Shabbir Hussain and Muhammad Javed, A.A.-G. for Respondents.

Date of hearing: 23rd April, 2014.

2015 P Cr. L J 585

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SAJJAD AHMAD---Appellant

versus

The STATE and 3 others---Respondents

Criminal Appeal No.24-B of 2012, decided on 9th October, 2013.

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

----Ss. 302(b), 324 & 337-A(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Munaqqilah--- Appreciation of evidence---Benefit of doubt---Occurrence had taken place at night time, but neither the complainant nor prosecution witness had uttered a single word about availability of any source of light in the vicinity of the crime spot---No electric bulb had either been recovered or taken into possession therefrom---Identification of accused in the dark hours of the night, in circumstances, would be highly doubtful, when no mode of light had been brought on record to confirm the identity of accused---Both the complainant and prosecution witness, not only were closely related to each other, but also to the deceased lady---Domestic dispute had been alleged as motive---Both the eye-witnesses, were not only interested, but also inimical towards accused---Factum of witnessing the incident by many other persons had been admitted by the complainant, but none of said persons had been examined as witness to substantiate the version of the complainant---Medical evidence had totally negated the version of the complainant and other eye-witness---Prosecution witness had alleged that accused was a hardened, desperate criminal who used to quarrel with people of the area; but nothing of that sort had been disclosed in the FIR---No blood had been recovered from the place of the allegedly injured complainant---Ocular evidence, furnished by both the complainant and prosecution witness, was inconsistent and incompatible with medical evidence as well as other circumstances of the incident, which had created serious doubts about their presence and about mode and manner of occurrence as alleged by the complainant---Material facts had been suppressed by the complainant regarding genesis of the incident---Manner of occurrence as disclosed by the prosecution, was distorted version calculated to support the fake and concocted story of the complainant---Prosecution had failed to bring home the guilt of accused; and impugned judgment of Trial Court was result of misreading and non-reading of evidence available on record---Trial Court being not justified in convicting and sentencing accused, impugned judgment of the Trial Court was set aside---Accused was acquitted of the charge and was set at liberty, in circumstances.

Muhammad Ishaque v. The State 2007 SCMR 108 ref.

(b) Criminal trial---

----Site plan---Scope---Site plan, no doubt was not a substantive piece of evidence, but being the first reflection of the spot, indicated or pointed out by the eye-witnesses, would furnish a panoramic view of the occurrence to scrutinize the evidence tendered at the trial by the prosecution witnesses.

(c) Criminal trial---

----Benefit of doubt---Entitlement---Prosecution, primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence, enabling the court to draw conclusion; whether prosecution had succeeded in establishing accusation against accused, or otherwise---If it would come to the conclusion that the charges so imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt---If any single and slightest doubt was created, benefit of the same, would go to accused; and it would be sufficient to discredit the prosecution story; and entitled accused for acquittal---Many doubts were not required in the prosecution case, but any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind was sufficient for acquittal of accused---Benefit of doubt must accrue in favour of accused as a matter of right and not of grace---Accused was always considered as the most favourable child of law, and every benefit of doubt would go to him regardless of fact whether he had taken any such plea or not.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Faryad Ali v. State 2008 SCMR 1086 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Recovery of crime empties---Evidentiary value of---Such empties would only show that the deceased was killed through firearms, and the killers left behind the empties, but it would not carry the printed names of the killers---When the crime weapon had not been recovered, evidentiary value of the crime empties had diminished to considerable extent and could not be used as incriminating article, or evidence against accused.

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

----Ss. 302(b), 324 & 337-A(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Munaqqilah--- Appreciation of evidence---Abscondence of accused---Nature and scope---Prosecution could not seek support from factum of abscondence of accused, when eye-witnesses had not established their presence at the spot, and their testimony had been disbelieved being pregnant with doubts, and suffering from material contradictions---Mere absconsion, was not a conclusive proof of guilt of accused, but was only a suspicious circumstance against accused, that he was found guilty of the offence---Suspicions could not take the place of proof---Value of abscondence, would depend on the facts of each case---Absconsion of accused, could be consistent with the guilt or innocence of accused, which was to be decided keeping in view over all facts of the case---Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances---Abscondence, no doubt was a relevant fact, but it could be used as a corroborative piece of evidence, which could not be read in isolation, and it had to be read along with substantive piece of evidence.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

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

----Ss. 302(b), 324 & 337-A(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Munaqqilah--- Appreciation of evidence---Statement of injured witness as basis of recording conviction of accused---Statement of injured witness, supported by medical evidence, was sufficient for recording conviction, provided it rang true and was trustworthy, in view of its intrinsic worth---Mere stamp of injuries on the person of a witness, would not be a proof of the fact that whatever he deposed would be the truthful account of the events---Veracity of such witness was to be tested from the circumstances of the case; and his own statement, whether it fitted in the circumstances of the case or otherwise---Strong and corroborative evidence of unimpeachable character was required for recording conviction---Finding of guilt against accused, must not be based on probabilities to be inferred from evidence---Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught---Absolute certainty was seldom available in forming an opinion qua guilt or innocence of a person---Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice was caused to either party.

Pir Liaqat Ali Shah for Appellant.

Saif ur Rehman, A.A.-G. for the State.

Masood Iqbal and Fazal Hayat for the Complainant.

Date of hearing: 9th October, 2013.

2015 P Cr. L J 604

[Peshawar]

Before Nisar Hussain Khan and Lal Jan Khattak, JJ

ISMAIL KHAN---Petitioner

versus

The STATE---Respondent

Criminal Revision Petition No.132-P of 2013, decided on 2nd May, 2014.

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

----S. 7---Age of accused---Determination---Principles---Accused had challenged order of the Trial Court, whereby his application for submission of challan in terms of Juvenile Justice System Ordinance, 2000 had been turned down---Medical Board had opined that at the time of examination of accused his age was 18 to 19 years---For availing benefit of Juvenile Justice System Ordinance, 2000, accused was required to raise said issue at the investigation stage, and later on before the Trial Court---Accused raised said issue before the Trial Court, which was required to proceed under S.7 of Juvenile Justice System Ordinance, 2000---Trial Court would enquire into the matter for determination of age of accused, and medical report would be part of that enquiry and not a conclusive proof thereof---Evidence in proof of plea raised by accused, was to be led by accused in accordance with law during enquiry; in which the prosecution was to be afforded ample opportunity of cross-examination of the witnesses to test sanctity and genuineness of the documents and credibility of oral evidence---Opinion of the Medical Board would be a piece of evidence and not final and sole proof of the minority of accused, and that too would be led in evidence for determination of the age of accused---If same was objected to by the prosecution, it could call the author of the report for cross-examination---While disposing of the petition High Court directed that in case accused was pressing his plea with regard to his minority, he may substantiate the same before the Trial Court in the light of guidelines provided by the High Court.

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 ref.

Sanaullah for Petitioner.

Qaiser Ali Shah, A.A.-G. for the State.

Date of hearing: 2nd May, 2014.

2015 P Cr. L J 669

[Peshawar]

Before Mrs. Irshad Qaiser, J

NAZAR HUSSAIN---Appellant

versus

The STATE and others---Respondents

Jail Criminal Appeal No.43-A of 2011, decided on 12th February, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Parties were closely related to each other---Delay of about five hours in reporting the incident to the Police, was not explained in the FIR as well as in the statements of the witnesses before the court---Prosecution had relied upon the statement of the deceased then injured as "dying declaration", which did not fulfil the basic requirements to be declared as a "dying declaration" and was discarded by the Trial Court---Exact time of alleged occurrence was not established beyond reasonable doubt---Facts mentioned in the FIR were not true, and names of the eye-witnesses were not recorded in the FIR---Prosecution had failed to produce any independent person to prove very important aspect of the matter---Empty bottle and the stick allegedly recovered from the spot, were also not sent to the Laboratory for chemical analysis to determine the use of kerosene oil---Said recovery of empty bottle and stick, was also not proved through any independent witness---Prosecution had also failed to prove the motive---No oral or documentary evidence had been produced to the factum of joint ownership of house in question---Investigation had not been conducted in accordance with the procedure, required under S.174-A, Cr.P.C., and was also not conducted diligently, honestly---Credence of star witnesses of the prosecution, was highly doubtful---Occurrence had not taken place in the mode and manner as alleged by the complainant in the F.I.R., and later, narrated in their court statement, which created serious doubt in the prosecution case, the benefit of which should have been given to accused---Ocular account furnished by prosecution witnesses, being not confidence inspiring, no reliance could be placed thereupon---Trial Court, was not justified to convict the accused---Conviction and sentences recorded by the Trial Court, were set aside, and accused was acquitted of all the charges levelled against him and he was set free, in circumstances.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 rel.

Abdul Saboor for Appellant.

Muhammad Naeem Abbasi, A.A.-G. and Iftikhar Khan Jadoon for the State.

Date of hearing: 12th February, 2014.

2015 P Cr. L J 697

[Peshawar]

Before Dost Muhammad Khan, C.J. and Assadullah Khan Chamkani, J

FIRDOUS KHAN---Appellant

versus

The STATE---Respondent

Ehtesab Criminal Appeal No. 1 of 2006, decided on 22nd October, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 14(d)---Corruption and corrupt practice by misuse of authority--- Appreciation of evidence--- Onus to prove--- Prosecution, duty of---Accused was convicted by Trial Court and sentenced to imprisonment for seven years---Validity---Prosecution was primarily bound to establish guilt against accused without any shadow of reasonable doubt by producing trustworthy, convincing and reliable evidence having intrinsic worth to enable Court to draw conclusion that prosecution had succeeded in establishing accusation against accused---If Court had come to the conclusion that charges so imputed against accused were not proved beyond reasonable doubt, then accused was entitled for acquittal--- Requirement of criminal law was that prosecution was duty bound to prove its case beyond reasonable doubt and if single and slightest doubt was created benefit of the same should have gone to accused which was sufficient to discredit prosecution story---Person charged with criminal offence was to be saddled with liability only if prosecution had established its case against him beyond all reasonable doubts otherwise not---Oral as well as documentary testimony of prosecution witnesses coupled with statements of Court witnesses, observations of bank and financial experts, fraud, collusion, forgery and tampering in official record and accounts against accused was fully established--- Prosecution had fully established/ proved the allegations leveled against accused and he was rightly convicted and sentenced by Trial Court---Appeal was dismissed in circumstances.

Barrister Syed Mudasser Ameer for Appellant.

Muhammad Jamil, D.P.-G. for the State/NAB.

Date of hearing: 22nd October, 2013.

2015 P Cr. L J 735

[Peshawar]

Before Abdul Latif Khan and Ikramullah Khan, JJ

IQBAL---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No. 421-P of 2012, decided on 10th October, 2013.

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

----Ss. 302, 365-A, 201, 109 & 34--- Qatl-i-amd, kidnapping for ransom, causing disappearance of evidence of offence, abetment, common intention---Appreciation of evidence---Benefit of doubt---Contradictions were floating in the statements of prosecution witnesses, with regard to; arrest of accused; recovery of dead body; confession of accused; identification of accused and recovery of weapon of offence, etc.---Deceased was murdered inside the house, but none of the inmates heard firing or noticed the digging of the soil---Post-mortem report did not corroborate the prosecution version on the point of time of death of the deceased---Recovery of some articles in the shape of gentri, spades, sticks and stone, was not helpful to the prosecution as those items were normally available in the house---Place of occurrence, was visited by various Police Officials right from the day of occurrence, but neither the Police nor the complainant party noticed such articles, though were lying openly in the court yard of the Hujra of the complainant---No blood was detected, either on the stone or the stick recovery from said Hujra, where the occurrence took place---Prosecution case was full of contradictions, and the manner and mode of the occurrence, as alleged by the prosecution, was highly doubtful and evidence produced in support of the case was not confidence inspiring---Confessional statement which was recorded on the sixth day of arrest of accused, had undermine its credibility and cast doubt---No evidence was adduced to the effect that crime weapons were stained with human blood---Mere securing of weapon at instance of accused was not a circumstance against him---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Impugned judgment was set aside and accused was acquitted of the charges, by extending him benefit of doubt, and he was released, in circumstances.

The State v. Kalab Ali and 2 others 2010 GBLR 256; Asif Zaheer and another v. State 2010 YLR 3191; Patoo and another v. The State 2012 MLD 1358; Mah Gul v. State 2009 SCMR 4 and Muhaiyimad Jamail v. The State 2010 MLD 1586 rel.

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

----S. 164--- Confession--- Retracted confession---Juvenile accused---Duty of court---Confessional statement was not to be accepted as a substantial piece of evidence to place conviction on it alone, unless it was corroborated in each and every detail by other corroborative circumstantial evidence---Courts were always vigilant in the matter, that the prosecution would prove in all circumstances that confessional statement was free of all kind of coercion, threat, promise; and was voluntary---Retracted confession would not be accepted as a gospel truth---Court was to carefully scrutinize confessional statement as to whether all the formalities required thereof were fulfilled.

Muhammad Parvez v. State 2007 SCMR 670 and Muhammad Ali v. State 2008 PCr.LJ 87 rel.

(c) Criminal trial---

----Conviction of accused---Appreciation of evidence---No one would be convicted for a crime, unless his guilt was proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence---Dubious and shaky kind of evidence could not be treated as substantive evidence---For convicting an accused on capital charge there should be confirmed authentic, direct evidence, which should appeal to logic and reason---Admissibility and credibility of evidence, were two different matters and one should not be mixed up with other.

(d) Criminal trial---

----Benefit of doubt---Conviction must be based on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of accused---Whenever doubt floated on the surface of record, where accused faced trial on capital charges, its benefit must go to accused, not as a matter of grace, but as of right.

Mst. Askar Jan and others v. Muhammad Daud 2010 SCMR 1604; Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230; Holy Prophet (P.B.U.H.) and Ayub Masih v. The State PLD 2002 SC 1448 rel.

Syed Lal Badshah for Appellant.

Arshad Ahmad Khan DAG and Ishtiaq Ibrahim for the State.

Date of hearing: 10th October, 2013.

2015 P Cr. L J 779

[Peshawar]

Before Nisar Hussain Khan and Ikramullah Khan, JJ

SHAHID IMRAN---Petitioner

versus

The STATE---Respondent

Criminal Revision No.117-P of 2013, decided on 22nd November, 2013.

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

----Ss. 9, 48 & 74---Criminal Procedure Code (V of 1898), S.516-A---Recovery of narcotic substance---Revision---Maintainability---Vehicle, superdari of---Principles---Vehicle in question and its driver were taken into custody, as narcotic substance was recovered---Petitioner claimed to be real owner of vehicle and sought its interim possession---Validity---Though no absolute bar could be placed on releasing vehicle on interim custody under the provisions contained in S. 74 of Control of Narcotic Substances Act, 1997 but the claimant had to at least prima facie establish that he had no nexus or connection of whatever kind with commission of offence or with offender---Accused was driver of petitioner, which prima facie made nexus of petitioner with accused---Proposition of innocence of accused could not be determined without recording of evidence in such respect that it was not known to him that offence was being or had to be committed through the vehicle in question---Control of Narcotic Substances Act, 1997, which had super imposing status as regard to general criminal law and special procedure was provided for redressal of grievance, recourse to general law was to be avoided---Provision contained in section 48 of Control of Narcotic Substances Act, 1997, conferred rights upon aggrieved person to file appeal against any order passed by Special Court in exercise of its jurisdiction thereunder and revision was competent without first exhausting remedy of appeal provided under S. 48 of Control of Narcotic Substances Act, 1997--- Revision was dismissed in circumstances.

Abdul Salam v. The State 2003 SCMR 246 rel.

(b) Administration of justice---

----Interim relief--- Powers--- If a Court has conferred with jurisdiction to grant a final relief, it may also exercise its judicial discretion to grant interim relief possessing inherent jurisdiction in such regard.

Shan Asghar for Petitioner.

Nemo for the State.

Date of hearing: 22nd November, 2013.

2015 P Cr. L J 795

[Peshawar]

Before Syed Afsar Shah, J

AYAZ---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 204-D of 2014, decided on 24th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 33---Attempt to commit qatl-i-amd, common intention---Bail, refusal of---Report, in the case was lodged after more than twelve hours of the occurrence---Complainant, had charged accused along with his co-accused for commission of the offence---Occurrence, in addition to the complainant, was stated to have been witnessed by other inmates of the house---Specific motive behind the offence existed which was stated to be a dispute on women folk---Injury on the person of father of the complainant, was on vital part of his body---Mere fact that allegations were general in nature as the injuries were not specifically attributed to either of the two accused, would not make the case of accused, one of further inquiry---Petition for grant of bail, was dismissed, in circumstances.

Saif-ur-Rehman Khan Gandapur for Petitioner.

A.A.-G. for the State.

Aamir Farid Khan Sadozai for the Complainant.

Date of hearing: 24th July, 2014.

2015 P Cr. L J 838

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

AZMAT ULLAH alias DADDI---Appellant

versus

PIR BADSHAH and another---Respondents

Criminal Appeal No. 91-P of 2011, decided on 3rd June, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was directly and singly charged for murder of deceased---Substitution of single accused in a murder charge, was a rare phenomenon, but still to record conviction where accused was charged singly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring; corroborated by other material circumstantial evidence---Occurrence was nocturnal, but, complainant had not disclosed about any source of light, whether electric or moon on the spot, through which he identified the accused---Investigating Officer, during spot inspection, had not recovered any electric bulb, or any other lighting device, so as to make possible identification of the assailant---Identification of accused, was highly doubtful, in circumstances---Place of occurrence was surrounded by houses and shops, and was at a distance of 1/2 Kilometer from police station, but complainant had not furnished any explanation as to why he remained on the spot with the dead body, without making any effort to inform his house inmates, the inmates of the nearby houses, or the Police Station about the occurrence---Unnatural conduct of complainant like a silent spectator, was quite disturbing one, because, he had not made any effort to shift the dead body of his deceased brother to the hospital, or to Police Station---All said circumstances had suggested that complainant was procured later on and was cited as eye-witness of the occurrence---Complainant, having failed to establish his presence on the spot at the time of occurrence, his testimony, which otherwise was shaking, scanty, could not be believed and relied upon---Police Official, who appeared as prosecution witness, had totally contradicted the version of the complainant---Recovery of 7.62 bore empties from the spot, totally negated the prosecution version---Injuries on the person of the deceased, also did not commensurate with the number of empties recovered---Blood stained earth and garments, taken into possession from the place of occurrence; which were sent to Forensic Science Laboratory for chemical analysis, report whereof was positive, could only advance the case of prosecution to the extent that deceased was done to death, with firearm; but would not be sufficient to prove that it was the accused who had committed the murder---Prosecution could not seek support from factum of abscondence of accused, when eye-witness, had not established his presence at the spot; and his testimony had been disbelieved being pregnant with doubts; and suffering from material contradictions---Prosecution had failed to bring home the guilt of accused beyond shadow of doubt through cogent and confidence inspiring evidence---Impugned judgment of the Trial Court being result of misreading and non-reading of evidence, conviction and sentence awarded to accused by the Trial Court were set aside, and he was acquitted, and was set free, in circumstances.

Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Riaz Masih v. The State 1995 SCMR 1730; Siraj v. Crown PLD 1956 FSC 123 and Saifullah's case 1985 SCMR 410 ref.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence, could only confirm the ocular evidence with regard to the seat of injury, nature of injury, kind of weapon used in the incident, but in absence of substantive evidence, same would not be enough to connect accused with commission of offence.

(c) Criminal trial---

----Absconsion of accused---Effect---Mere absconsion, was not a conclusive proof of guilt of accused---Abscondence was only a suspicious circumstance against an accused; that he was found guilty of the offence---Suspicion could not take the place of proof---Value of abscondence, would depend on the facts of each case---Absconsion of accused; could be consistent with the guilt or innocence of accused; which was to be decided, keeping in view over all facts of the case---Mere abscondence of accused, could not be made the basis for his conviction---Abscondence, 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.

Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt, would arise in the prosecution case, benefit of the same must be extended to accused, not as grace or concession, but as a matter of right---Many doubts were not required in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind, was sufficient for acquittal of accused---Better to acquit hundred culprits than convicting one innocent soul---Acquitting by error, would be better, than convicting by error.

Muhammad Amin Khattak Lachi for Appellant.

Khizar Hayat, A.A.G. for the State.

Hasan U. K. Afridi for the Complainant.

Date of hearing: 3rd September, 2014.

2015 P Cr. L J 860

[Peshawar]

Before Yahya Afridi, J

Syed ISHAQ SHAH---Petitioner

versus

SHAKIR SHAH and another---Respondents

Criminal Miscellaneous No.339-A of 2012, decided on 25th February, 2013.

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

----S. 497(5)---Bail, cancellation of---Principles governing recalling grant of bail are completely different from those for refusing it---Grounds which are required for recalling or cancelling pre-arrest or post-arrest bail already granted by a competent Court are harsher and stringent than those of granting or refusing the same---Principles of cancellation can be equated to that of setting aside an acquittal order passed by competent Court.

Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCMR 231 rel.

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

----S. 497(5)---Penal Code (XLV of 1860), S.436---Mischief by fire or explosive substance with intent to destroy house, etc.---Pre-arrest bail, cancellation of---Non-associating the investigation by accused---Mala fide of complainant---Accused was alleged to have set on fire cattle-shed of complainant and his pre-arrest bail was confirmed despite his failure to join investigation--- Validity--- Order passed by Lower Appellate Court was silent regarding essential issue of 'mala fide' and accused did not associate with investigation before confirmation of bail before arrest---Lower Appellate Court ignored such two important factors in its order which was against settled principles---High Court recalled the order passed by Lower Appellate Court---Bail was cancelled in circumstances.

Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 and Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1854 rel.

Saeed Ahmad Awan for Petitioner.

Syed Akhtar Hussain Shah and Muhammad Nawaz Khan Swati, A.A.-G. for the State.

Date of hearing: 25th February, 2013.

2015 P Cr. L J 873

[Peshawar]

Before Muhammad Daud Khan and Syed Afsar Shah, JJ

FAHID ULLAH KHAN and 3 others---Petitioners

versus

Mst. DIL PAZIR JAN and another---Respondents

Writ Petition No. 306-B of 2014, decided on 10th September, 2014.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.200---Constitution of Pakistan, Art. 199---Constitutional petition---Illegal dispossession---Dismissal of complaint---Complaint, under S.3 of Illegal Dispossession Act, 2005, alleging that petitioners/proposed accused persons, had forcibly dispossessed complainant from the premises in dispute---Contention of the petitioners, was that complaint was not maintainable, as the same was filed malafidely and the Trial Court had recorded statement of the complainant without administering oath to her---Validity---For proceedings under Illegal Dispossession Act, 2005, recording of statement of the complainant, on oath was not essential requirement---Contention of the petitioners in view of the record, could not be sustained---Complainant was directed to be given opportunity to prove the contents of her complaint by adducing evidence---Order accordingly.

Allah Wasaya and others v. Sikandar Hayat and others 2012 SCMR 193; Shahabuddin v. The State 2010 PCr.LJ 422 and Rana Muhammad Akram Khan v. Special Judge, Anti-Corruption Provincial, Faisalabad and others 2007 YLR 260 ref.

Haji Dilawar Khan and Muhammad Riaz Khan for Petitioners.

Date of hearing: 10th September, 2014.

2015 P Cr. L J 890

[Peshawar]

Before Mrs. Irshad Qaiser and Waqar Ahmad Seth, JJ

SIBTAIN ALI SHAH---Petitioner

versus

The STATE---Respondent

Writ Petition No. 5 of 2011, decided on 28th November, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 190---Constitution of Pakistan, Art. 199---Constitutional petition---Submission of complete report (challan)---Direction by Magistrate---Scope---Investigating officer submitted his report for cancellation of case on the basis of affidavit sworn in by father of complainant---Magistrate instead of cancelling the case directed investigating officer to file complete investigation report in court---Validity---In view of statement of complainant coupled with medical examination and x-ray report, complainant had made out a prima facie case against accused---Investigating officer should not have thrown out the material by taking into consideration affidavit and statement of interested person who had no good relations with his children and wife---Magistrate had rightly found that case against accused was not liable to be cancelled and it was premature to observe that case against accused was not fit for putting in Court---Accused failed to point out any illegality in the order passed by Magistrate---Petition was dismissed in circumstances.

Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; NLR 2001 Cr.LJ 556; Nasrullah v. The State 1998 PCr.LJ 2086 and Azizur Rehman v. Kala Khan 1998 PCr.LJ 743 ref.

Qazi Shams-ud-Din and M. Arshad Awan for Petitioner.

Raja Zubair D.A.-G. for the State.

Date of hearing: 28th November, 2013.

2015 P Cr. L J 919

[Peshawar]

Before Lal Jan Khattak, J

ALAMGIR---Appellant

versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No. 208-M of 2013, decided on 17th July, 2014.

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(II) & 34---Attempt to commit qatl-e-amd, Ghayr-jaifah, acts done by several persons in furtherance of common intention---Appreciation of evidence---Testimony of injured person/ witness---Probative value/significance---Benefit of doubt---Mere stamp of injury on the person of witnesses would not make testimony of such witnesses a gospel truth---Testimony of injured witness could not be considered in isolation of other material evidence on record and such testimony required independent corroboration from circumstantial evidence especially when enmity between the parties due to previous civil and criminal litigation was an admitted fact---No empty was recovered from the place where accused had been shown in the site plan---Ocular account was not corroborated by circumstantial evidence---Accused being a lame person could not be believed to have run away after firing upon the complainant---Site plan contradicted ocular account regarding place from which accused had fired on the complainant---Prosecution had to prove its case beyond shadow of doubt---Even a slight doubt would entitle accused to benefit of doubt---Prosecution case was not free from doubt---Conviction and sentence of accused was set aside.

Said Kareem Shabnara for Appellant.

Muhammad Jawid, A.A.-G. for the State.

Syed Sultanat Khan for the Complainant.

Date of hearing: 17th July, 2014.

2015 P Cr. L J 938

[Peshawar]

Before Waqar Ahmad Seth, J

ARSHAD KHAN---Petitioner

versus

JEHANZEB and 6 others---Respondents

Cr. M(Q) No.6-P of 2014, decided on 27th October, 2014.

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

----S. 561-A---Inherent powers of High Court---Object of such powers was to do the real and substantial justice and to prevent the abuse of the process of the court---Powers of High Court were very wide to secure the ends of justice.

Miraj Khan v. Gul Muhammad and 3 others 2000 SCMR 122 ref.

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

----Ss. 188 & 34---Criminal Procedure Code (V of 1898), Ss.561-A & 195---Civil Procedure Code (V of 1908), O. XXXIX, R. 2(3)---Disobedience to order duly promulgated by public servant---Common intention---Quashing of FIR---Injunction, implementation of---Powers of civil court---Civil court had adequate powers to enforce and ensure the implementation of its order/injunction by taking recourse to the provisions of O.XXXIX, R.2(3), C.P.C.---Neither a complaint under S.195, Cr.P.C. was filed by the Civil Judge nor an application in that behalf was made before the civil court by the respondent---Dispute, being of civil nature, FIR could not be lodged---Impugned FIR, registered under S.188/34, P.P.C., was ordered to be quashed, in circumstances.

Fazl-e-Haq Koli Damani for Petitioner.

Fayaz Chamkani for Respondents.

Arshad Khan, A.A.-G. for the State.

Date of hearing: 27th October, 2014.

2015 P Cr. L J 949

[Peshawar]

Before Rooh-ul-Amin Khan and Malik Manzoor Hussain, JJ

ASAD ULLAH KHAN and 3 others---Petitioners

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and 4 others---Respondents

Writ Petition No. 481-M of 2014, decided on 21st November, 2014.

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

----Ss. 419, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Arts.4, 10 & 199---Constitutional petition---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged documents, corruption---Petition for quashing of FIR---Petitioners had questioned the legality of FIR as well as existence of the Police Station Anti-Corruption Establishment in Malakand, as violative of the Constitution on the ground that neither Prevention of Corruption Act, 1947, nor the 'West Pakistan Anti-Corruption Establishment Ordinance, 1961', were extended to the Tribal Areas by the President of Pakistan, therefore, the same were functioning without any authority---Validity---High Court while tracing the history of legislation on the subject, held, that Anti-Corruption Establishment was functioning in accordance with law and Constitution in the Tribal Areas of then Peshawar Division, including Swat, Dir and Chitral---Police Station established under Anti-Corruption Establishment, was working under the Constitution having the backing of relevant law---Case, registered against the petitioners/accused persons, was in accordance with law---High Court could not control or interfere in the matter of investigation, which was sole prerogative of Anti-Corruption agency---Factual inquiry could not be made by High Court under the constitutional jurisdiction---Petitioners, seeking quashing of FIR, had an alternate remedy to raise an objection at the time of framing of charge against them by the Trial Court during the trial after recording of some evidence under S.265-K or 249-A, Cr.P.C.---Petition being bereft of merits was dismissed, in circumstances.

Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317; Marghoob Alam and another v. Shams Din and another 1986 SCMR 303; Shehnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Brig. (R) Imtiaz Ahmad v. Government of Pakistan through Secretary 1994 SCMR 2142 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

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

----Ss. 156 & 173---Investigation of offence---Investigating Officer was to collect all the facts connecting with the commission of offence; and if he would find that no offence was committed, he could submit a report under S.173, Cr.P.C.---If the Investigating Officer was restrained from investigating the matter, his statutory duty would be curtailed---Functions of the judiciary, and the Police were complementary not overlapping; and the combination of individual liberty with due observation of law.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Amjad Ali for Petitioners.

Sabir Shah, A.A.-G. and Rahimullah D.A.-G. for Respondents.

Date of hearing: 21st November, 2014.

2015 P Cr. L J 1005

[Peshawar]

Before Assadullah Khan Chamkani, J

NOMAN SHAH and another---Petitioners

versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No. 574-P of 2014, decided on 16th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324 & 34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Injured had sustained a solitary injury, for which three accused had been charged---General role of firing had been attributed by the complainant to all three accused, without specification of fatal shot to any one of them---As to shot of which of the three accused proved fatal, and the vicarious liability of accused in commission of offence, was the question, which could only be answered by the Trial Court after recording evidence---Such had made the case of accused persons, that of further inquiry into their guilt---Two versions of the case were on the record and as to which of the two versions was correct, was yet to be determined by the Trial Court after recording evidence---Such aspect of the case, also made the case of accused persons arguable for the purpose of bail---Mere fact that punishment provided for the offence fell within the restrictive limb of S.497, Cr.P.C., would not obstruct the way of bail, when otherwise, on merit the case of bail had been made out---Bail could not be withheld as a punishment, because a mistaken relief of bail could be repaired by convicting accused after trial, if found guilty, but no proper reparation could be offered to accused for unjustified incarceration---Accused were admitted to bail, in circumstances.

Hussain Ali for Petitioner.

Rab Nawaz, A.A.-G. for the State.

Imran Khan for the Complainant.

Date of hearing: 16th May, 2014.

2015 P Cr. L J 1023

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

UBAIDULLAH alias BAIDUL---Appellant

versus

MUHAMMAD HAYAT and another---Respondents

Criminal Appeal No.193 of 2012 and Murder Reference No.7 of 2012, decided on 14th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(iii), 429, 436, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, mudihah, mischief by killing or maiming cattle etc., mischief by fire or explosive substance with intent to destroy house etc.; rioting, armed with deadly weapon, member of unlawful assembly guilty of offence committed in prosecution of common object---Appreciation of evidence---Testimony of injured witness--- Benefit of doubt--- Principles--- Abscondence--- Effect---Fourteen persons were charged with the murder of four persons and causing injury to two others in FIR with no specific role---Eleven out of fifteen accused persons had been acquitted by the Trial Court on the basis of compromise---FIR was lodged by delay of 16 hours after consultations and preliminary investigation---Doubts existed as to place of recording the FIR---Prosecution witness contradicted complainant as to place where matter was reported to Police---Investigating Officer deposed that he was busy in investigating another case when complainant reported the matter to him but neither FIR nor daily diary of that other case was placed on file---Investigating Officer deposed that injured were examined at 10.00 a.m. but record showed that injured had been examined by Medical Officer at 9-00 a.m to 9-40 a.m. i.e., before the preparation of injury sheet---Police Station was at a distance of 7/8 Kms from the place of occurrence; Police could not be believed to have not heard the sound of fire or remained unaware of the tragedy in which four people were done to death---Spot was inspected on the pointation of complainant but presence of complainant was not shown at the site plan---Witnesses contradicted each other regarding direction of firing---Fight had taken place between people of two villages, therefore, identification of each and every accused by name was not possible---Though one of witnesses had stamp of injuries and her presence at the place of occurrence was not disputed, yet mere presence of stamp of injures on her person was not yardstick for determining her truthfulness or otherwise---Testimony of injured witness had to be tested on the principles applied for appreciation of evidence of any other prosecution witness---Presence of injured witness could not be doubted at place of incident, but mere presence of injures on the person of such witness would not stamp him truthful witness---Numerous infirmities were not required to disbelieve a witness, rather, single infirmity impeaching the credibility of witness could make the entire statement of such witness doubtful---Fifteen (15) persons were charged with indiscriminate firing at the deceased and the injured---Prosecution had to prove the participation of each and every accused in commission of offence but Investigating Officer did not send the crime empties to the Forensic Science Laboratory---In the absence of postmortem reports of the deceased, Investigating Officer should have sent the recovered empties to laboratory to ascertain whether bullets were fired from one or different weapons---Prosecution failed to produce any of villagers allegedly present on the scene---In murder cases punishable with death or imprisonment for life prosecution was bound to corroborate (ocular account) through independent sources---Witnesses were admittedly related to the deceased---Where best evidence available with a party was withheld, such party would be presumed to have some sinister motive for withholding such piece of evidence---Accused remained absconder for considerable period of time but mere abscondence was not proof of guilty mind---Abscondence can only be used as corroborative piece of evidence and same had to be read with substantive piece of evidence---Substantive piece of evidence in the form of ocular account had been disbelieved, therefore, conviction could not be based on abscondence alone---Prosecution case was damaged by serious doubts---Single infirmity creating reasonable doubt in the prudent mind regarding the truth of charge would make the whole case doubtful---Doubtful instances in prosecution case must go to accused regardless of the fact whether the accused had taken such plea or not--- Evidence of prosecution witnesses was neither truthful nor confidence inspiring---Possibility of false implication could not be ruled out---Where more than one possibility appeared in a case, possibility favouring the accused had to be preferred---Rule of benefit of doubt was a rule of prudence which could not be ignored in dispensation of justice in accordance with law---Appeal of accused was allowed while acquitting him of the charges levelled against him.

Amin Ali and another v. The State 2011 SCMR 323; Rohtas Khan v. The State 2010 SCMR 566 and Ghulam Qadir v. State 2008 SCMR 1221 rel.

Zia-ud-Din Siddiqui and Badi-uz-Zaman for Appellant.

Ghulam Mohyuddin Malik for Respondents.

Muhammad Javed, A.A.-G. for the State.

Date of hearing: 14th May, 2014.

2015 P Cr. L J 1048

[Peshawar]

Before Syed Afsar Shah, J

ZAHEER ULLAH---Petitioner

versus

The STATE---Respondent

Criminal Miscellaneous/B. A. No.536-P of 2015, decided on 13th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Foreign Exchange Regulation Act (VII of 1947), Ss.4, 5 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Smuggling of currency, money laundering---Bail, grant of---Further inquiry---No doubt, huge quantity of currency had been recovered from the car which was driven by accused, but recovered currency was local---Court was to see as to whether accused was involved in the business of "Hundi/Hawala"; and whether accused was duly authorized (to deal with currency) or otherwise---Such questions would be determined at the trial after recording evidence---Keeping in view the maximum punishment provided for the offence for which accused was charged; and recovery of local currency, there was scope of further inquiry into the guilt of accused---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Mrs. Abdul Latif Khan, A.A.-G. for the State.

Date of hearing: 13th April, 2015.

2015 P Cr. L J 1083

[Peshawar]

Before Syed Afsar Shah, J

ABDUL LATIF---Petitioner

versus

The STATE and another---Respondents

Cr. Miscellaneous Bail Petition No. 201-D of 2014, decided on 20th October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Report had been lodged within thirty minutes of the occurrence, which prima facie, discarded the element of consultation and deliberation in nominating the accused---Version of the complainant in the FIR got support from the statements of prosecution witnesses, and medical evidence---Accused had been attributed a direct role of causing injury to the deceased with a specific motive, which was previous blood-feud between the parties---Contention that story, stated in the FIR, was inconsistent with the medical evidence and entries made in the site plan, could not be appreciated without deeper appraisal of evidence, which at bail stage was unwarranted---Plea of alibi raised by accused could be considered by the Trial Court in the light of the evidence led by the prosecution and defence---Ground of further enquiry should be based on a rational conclusion arrived at with reference to the peculiar facts of the case and not mere hypothetical and whimsical statement, contrary to the material available on record---Bail was refused, in circumstances.

Subeh Sadiq alias Saabo alias Kalu v. The State and others 2011 SCMR 1543; Ehsanullah v. The State 2012 SCMR 1137 and Ghulam Ahmad Chishti v. The State and another 2013 SCMR 385 ref.

Mumtaz v. The State 2012 SCMR 556; Muhammad Abbasi v. The State and another 2011 SCMR 1606; Rabnawaz and another v. The State and another 2005 PCr.LJ 13; Ghulam Ahmad Chishti v. The State and another 2013 SCMR 385; Haji Rahman Gul v. Imranuddin and another 2009 SCMR 1179 and Syed Maqbool Muhammad v. The State 2005 SCMR 635 rel.

Farooq Akhtar and Muhammad Iqbal Khan for Petitioner.

Sanaullah Khan Shamim, AAG for the State.

Ghulam Hur Khan Baloch for the Complainant.

Date of hearing: 20th October, 2014.

2015 P Cr. L J 1108

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

MUHAMMAD SAID and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.570 of 2011, decided on 13th November, 2013.

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

----Preamble & S. 29---Scope of Control of Narcotic Substances Act, 1997---Onus to prove the guilt of accused---Presumption in favour of the prosecution---Rebuttal of---Control of Narcotic Substances Act, 1997, as a Special Law, was enacted mainly to curb the menace of narcotics in the country---One of the main striking features provided in the Act, which was different from the general principles of safe administration of criminal justice, was that onus to prove the guilt of accused had not been placed entirely on the prosecution, but on the 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 obligations; and duty of initially establishing a 'prima facie' case of recovery of contraband from conscious possession of accused; and only after the said initial burden, was discharged by the prosecution, that onus would shift upon accused to prove his innocence.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.423---Possessing and trafficking narcotics--- Appreciation of evidence--- Report of Forensic Science Laboratory---Effect of---Juvenility of accused---Remand of case---Maker of the report of Forensic Science Laboratory, was not a "Government Analyst" under the law at the time he prepared the report---Co-accused, who had been charged in the case, claimed to be a juvenile, who produced his school leaving certificate, but the same went un-attended---High Court took with serious concern the inaction on the part of Presiding Officer of the Trial Court, which despite the jurisdictional issue raised before it, did not legally consider and decide the same---If the assertion of co-accused was true and correct, it would surely render the conviction awarded to co-accused by the Trial Court without jurisdiction, and of no legal effect---Very crucial issues involved in the case, required reconsideration, which warranted the remand of the case to the Trial Court---Safe administration of criminal justice required that none be prejudiced, and truth be ascertained---Deciding the case by High Court in appeal in circumstances, would prejudice co-accused; as jurisdictional issue raised by him, had not been attended by the Trial Court in appropriate legal manner---High Court set aside the conviction and sentence awarded by the Trial Court to accused persons, remanded the case to the Trial Court for decision afresh, after having fresh samples of contraband obtained and sent for chemical examination by Government Chemical Analyst and determine the age of co-accused at the time the alleged commission of offence---Accused persons had already suffered the rigors of trial and confinement, the trial be concluded within three months.

Aman-ul-Haq's case 2015 MLD 518 ref.

Noor Alam Khan for Appellants.

Mian Arshad Jan, AAG for the State.

Date of hearing: 13th November, 2013.

2015 P Cr. L J 1123

[Peshawar]

Before Mian Fasihul Mulk and Assadullah Khan Chamkani, JJ

ARSHID and another---Appellants

versus

SHAMAN-UD-DIN and another---Respondents

Cr. A. No. 675 of 2010, decided on 29th January, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in registration of FIR---Trial Court convicted accused persons and sentenced them to imprisonment for life---Validity---Prosecution failed to explain delay of three hours in lodging of report by complainant, in convincing and reliable manner---Presence of prosecution witnesses at crime spot was doubtful and report of crime weapons attributed to accused was in negative as its recovery from accused persons was not proved---Opinion of medical officer that death of deceased might have caused at 4-30 p.m., as against alleged time of occurrence as 5-30 p.m., hence medical version negated prosecution version---Recoveries effected from the spot was doubtful and circumstantial evidence also did not tag accused persons with alleged crime---To prove guilt of accused, prosecution evidence must come from unimpeachable source---Trial Court convicted accused persons and sentenced them on cryptic and inconsistent evidence, which was not sustainable in law---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted them of charges levelled against them---Appeal was allowed in circumstances.

Sahibzada Asadullah for Appellants.

Umar Hayat for the State.

Rehmanullah for the Complainant.

Date of hearing: 29th January, 2013.

2015 P Cr. L J 1142

[Peshawar]

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

HAZIR ZAMAN---Appellant

versus

BAKHT ZAMAN and 2 others---Respondents

Criminal Appeal No. 86-P of 2013, decided on 16th December, 2014.

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

----Ss. 302(b), 309, 310, 337-A(i) & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 345--- Qatl-i-amd, compromise, causing Shajjah-i-Khafifah, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Parties having patched up the matter outside the court, counsel of parties stated that as all the legal heirs of the deceased had forgiven accused in the name of Almighty Allah and had also waived off their right of Qisas and Diyyat, accused could be acquitted of the charge---High Court, satisfied with the report of the Trial Court with regard to compromise arrived at between the parties, was convinced that the legal heirs of the deceased had compounded the offence voluntarily, without duress or coercion and had waived their right of qisas and diyyat---Permission to compound the offence in view of subsection (5) of S.345, Cr.P.C. was accorded to the parties to the extent of S.302(b), P.P.C., in order to maintain relations and bury their hatchets forever---Motive for occurrence was family suit---Motive being suit for dissolution of marriage between accused (husband) and deceased (wife), application of S. 7 of Anti-Terrorism Act, 1997, which primarily required spread of insecurity and fear in the common mind was lacking, as such, definition of "terrorism" was not attracted---Conviction and sentence imposed upon the accused by the Trial Court was set aside; he was acquitted of the charges levelled against him and was set at liberty, in circumstances.

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

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss.302(b), 309 & 310---Act of terrorism---Determination of---Whether a particular act was an act of terrorism or not the motivation, object, design or purpose behind the act was to be seen---Alleged offence of murder in the case took place because of suit for dissolution of marriage between accused and the deceased lady---Motive for the occurrence was also the suit---Motive being dissolution of marriage between husband and wife, application of S.7 of Anti-Terrorism Act, 1997, which primarily required the spread of sense of insecurity and fear in the common mind was lacking in the case and definition of "terrorism" was not attracted to the case---Since the main case of murder of the deceased under S.302(b), P.P.C. had been patched up by her legal heirs with accused, and they had pardoned the accused in the name of Almighty Allah; they also waived off their right of Qisas and Diyyat, and they (including the injured witnesses), were not interested to proceed in the case, futile exercise, and sheer wastage of time of the court and the parties concerned to continue with the case---Allowing appeal of accused, conviction and sentence imposed upon accused by Anti-Terrorism Court, were set aside, he was acquitted of the charges levelled against him and was set at liberty, in circumstances.

Jalal ud Din Gara for Appellant.

Miss Abida Safdar for the State.

Date of hearing: 16th December, 2014.

2015 P Cr. L J 1171

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

HAKIM ZADA---Appellant

versus

The STATE and another---Respondents

Cr. A. No.2-M of 2013, decided on 10th December, 2014.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Dead body of deceased lady was found in hanging/strangulated position in her room, which was locked from both sides---Neither there was any eye-witness of the occurrence, nor the deceased was lastly seen by any body with accused, which could connect accused with the commission of offence---Prosecution witness was unable to prove the presence of accused on the spot at relevant time---Said witness was informed by another person about the occurrence, but the other person was not examined in the court for ascertaining the actual facts---Prosecution, in circumstances, had withheld its best evidence, which had made the story of prosecution dubious---None of the witnesses had narrated about the time of occurrence, nor seen the deceased in the company of accused---Post-mortem report showed no sign of resistance, or torture on the dead body of deceased---As to whether present case was a homicide or suicide was not clear, as the dead body of deceased had been found from her room which was locked from both sides---Investigating Officer also admitted that there was rumour that deceased was mentally not stable, due to which she might have committed suicide---Investigating Officer also admitted, in his court statement, that he could not collect any ocular evidence which could connect accused with the commission of offence---Accused, despite remaining in Police custody, had not confessed his guilt before the competent court---No material in the shape of finger-prints of accused on the dead body of deceased, rope, clothes was found, linking accused with the commission of offence; which made the prosecution case doubtful; and the benefit of such doubt would go to accused---Prosecution, in circumstances, had failed to prove the case against accused beyond any shadow of doubt---Judgment of conviction and sentence, based on misreading, non-appreciation of evidence on record, which was against the facts on record and law, was set aside---Accused was acquitted of the charges levelled against him and was released, in circumstances.

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

----Art. 129(g)---Withholding of evidence---Effect---If a best piece of evidence was available with a party; and same was withheld by it, presumption would be that the party had some evil motive behind in not producing the said evidence---Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, could fairly be drawn in the matter.

(c) Criminal trial---

----Benefit of doubt---Scope---Prosecution, was bound to prove its case beyond any shadow of doubt--- If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---Not necessary that there existed so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind was sufficient for acquittal of accused---Better to acquit hundred culprits than convicting one innocent soul---Acquitting by error would be better than convicting by error.

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

----S. 174---Suicide---Inquiry about commission of suicide---Scope---Investigating Officer, admitted that there were rumors that the deceased was mentally not stable, due to which she might have committed suicide---Provisions of S.174, Cr.P.C. had not been complied with by Investigating Officer, who was bound to inquire about commission of suicide by a person, or had been killed prior to registration of case---On receipt of information in respect of suicide Police Officer would intimate it to the nearest Magistrate having powers to hold inquiry, and thereafter proceed to spot and investigate the matter in the presence of two or more respectable persons hailed from the place and draw a report of apparent cause of death; describing full details, mode and manner of commission of crime; and weapon used and in case of doubt, refer the dead body with view to be examined by the nearest Civil Surgeon; or other qualified doctor appointed by Provincial Government--- No such procedure had been adopted in the present case, which made the case doubtful, and was fatal to prosecution case.

Sher Muhammad Khan for Appellant.

Sabir Shah, A.A.-G. for the State.

Khawaja Salahuddin for the Complainant.

Date of hearing: 10th December, 2014.

2015 P Cr. L J 1238

[Peshawar]

Before Assadullah Khan Chamkani, J

RASHID KHAN---Petitioner

versus

The STATE---Respondent

Cr. Misc. Bail Application No. 633-P of 2015, decided on 17th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Drugs Act (XXXI of 1976), Ss. 23(1)(A)(1), 23(1)(c), 27(1) & 30---Recovery of different types of spurious drugs---Bail, grant of---Prosecution was directed by High Court for submission of challan against accused within a month and the Trial Court to conclude the trial as early as possible, but not later than a month, on receipt of the record---Even the challan had not been submitted against accused after about two months---Lethargic attitude of the prosecution, being in utter violation of directions of High Court, was highly deplorable---Accused was admitted to bail, on the sole ground of irresponsible conduct of the prosecution.

Arshad Hussain Yousafzai for Petitioner.

Atif Nazir for the State.

Date of hearing: 17th April, 2015.

2015 P Cr. L J 1283

[Peshawar]

Before Haider Ali Khan, J

SABZ ALI KHAN---Appellant

versus

The STATE and another---Respondents

Cr. A. No.188-M with Murder Reference No.9-M of 2012, decided on 6th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Time of registration of FIR, and time of death of the deceased, became diametrically opposed to each other---Prosecution had miserably failed to give any plausible explanation with regard to such an important and glaring contradiction as to the time of death of the deceased---Statement of injured child prosecution witness under S.161, Cr.P.C., was not recorded on the same day, but was recorded on the following day of the occurrence, which was a serious irregularity---Crime weapon was stated to have been recovered at the pointation of accused from his house---Empties recovered from the spot matched with the weapon according to the report of Forensic Science Laboratory, but the recovery memo. in respect of the recovery of crime weapon had not been proved in accordance with law as one of the marginal witnesses was abandoned by the prosecution being won over; while the second witness to that effect was stated to be out of country---While being examined as prosecution witness, the questions, answers put to child witness were not reduced into writing by the Trial Court, which was an illegality---Impugned conviction and sentence recorded by the Trial Court against accused, were set aside---Accused was acquitted of the charge, and was set free, in circumstances.

Mardan Ali v. Gulistan and others (sic.) SCMR 889; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; Umar Jehan v. The State 1979 SCMR 186 and Abdul Hamid v. The State PLD 1980 Pesh. 25 rel.

Sher Muhammad Khan for Appellant.

Rafiq Ahmad, Assistant Advocate-General for the State.

Jalal-ud-Din and Badi-uz-Zaman for the Complainant.

Date of hearing: 5th March, 2015.

2015 P Cr. L J 1299

[Peshawar]

Before Haider Ali Khan, J

IBRAR AHMAD---Appellant

versus

The STATE through Additional Advocate-General, Khyber Pakhtunkhwa and another---Respondents

Criminal Appeal No. 159-M of 2014, decided on 27th January, 2015.

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

----S. 496-A---Enticing or taking away or detaining with criminal intent a woman---Appreciation of evidence---Sentence, reduction in---Complainant, in her report charged the accused with the offence, but while appearing before the court she/complainant, in her examination-in-chief, did not charge anyone---Despite that shortcoming, and failure of the prosecution, ocular testimony stood corroborated by the judicial confession of accused recorded by Judicial Magistrate, who complied with legal formalities while recording confessional statement of accused---Accused retracted from his confession in his statement recorded under S.342, Cr.P.C., but mere retraction by accused from his confessional statement by itself, was not sufficient to affect its validity, because, conviction, could be based on confession alone even though retracted, if same was found to be true and voluntary---Prosecution was successful in bringing home the charge under S.496-A, P.P.C.---Keeping in view the tender age of accused, and that he had no criminal record, while maintaining conviction of accused, sentence was reduced from the maximum of seven years' R.I., to three years' R.I.---Fine was also reduced to Rs.10,000, in circumstances.

Muhammad Ismail and another v. The State 1995 SCMR 1615 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 rel.

(b) Confession---

----Retraction--- Effect--- Mere retraction by accused from his confessional statement by itself, was not sufficient to affect its validity, because, conviction, could be based on confession alone even though retracted, if same was found to be true and voluntary.

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

----S. 328---Exposure and abandonment of child under twelve years by parent, or person having care of it---Appreciation of evidence---Present case was one not of exposure and abandonment of the two minor daughters of accused because the complainant (father-in-law) and accused (daughter-in-law) in the company of her two minor daughters had gone to hospital wherefrom, accused eloped with co-accused---Complainant, admitted that two daughters and one son of accused, were well taken care of and lived in a joint family with their paternal uncles and aunts and they were not suffering in any respect by the elopement of their mother/accused---Temporary neglect, was not sufficient to record conviction and the expression "abandoning the child in the given circumstances", would not come within the contemplation of S.328, P.P.C.---Children of accused, at the time of commission of offence, were in the immediate care of their grandmother, and were protected---Mere going away of mother from the children was not sufficient to press into service, the provision of S.328, P.P.C.---Sentence awarded to accused, was set aside and she was acquitted of the charge levelled against her, and was released, in circumstances.

(d) Interpretation of statutes---

----Provision of law, was to be construed and interpreted in a very strict manner and more liberal and broad interpretation, was to be avoided for the safe administration of justice.

Akhtar Munir Khan for Appellant.

Rafique Ahmed, A.A.-G. for the State.

Umar Ali Akhundzada for the Complainant.

Date of hearing: 26th January, 2015.

2015 P Cr. L J 1321

[Peshawar]

Before Muhammad Daud Khan, J

NISAR ALI---Petitioner

versus

The STATE---Respondent

Cr. Misc./B.A. No. 253-B of 2014, decided on 28th October, 2014.

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

----S. 497---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-i-amd---Bail, refusal of---Report having been lodged, no proof was available regarding consultation or deliberation, which could result for false implication of accused---During occurrence, a passerby, also sustained injury; his statement also strengthened the fact that occurrence had taken place at the crucial date, time and place---Site-plan, corroborated the version of FIR---Medical report revealed that injured received seven injuries, four on the chest area, and three on the abdominal area---Said report further suggested the conduct of accused, that how brutally he attacked---Plea of cross version invariably, carried phenomena of self-defence in it; and when from record it was not discernible as to who had aggressed, and who had acted in self-defence, parties were normally allowed bail---In the present case, no such circumstance could be gathered, except cross-fire---When prosecution evidence, prima facie, connected accused with commission of crime, entailing capital punishment and accused himself admitted the occurrence by taking place of cross-version, why mere cross fire should be accepted as licence for grant of bail---Accused of every cross case, could not claim bail as a matter of right---Accused contended that he was entitled for concession of bail being juvenile---School Certificate revealed that age of accused was 17 years 5 months and 15 days on the date of occurrence---According to S.10(5) of Juvenile Justice System Ordinance, 2000, a child under age of 15 years, was entitled for bail---Accused was not entitled for concession of bail, in circumstances---Accused remained absconder for a period of two months, without any explanation---Fugitive from law, who failed to provide plausible explanation for his long abscondence, would lose some of his procedural as well substantive right, and he could be declined bail---Deeper appreciation of evidence, had always been deprecated at bail stage, particularly at a stage, when trial had commenced or likely to commence in the near future, because any expression on merits at such stage, would cause prejudice to either party at trial stage---Only fact of non-recovery of crime empties from the place of occurrence, could not entitle accused for the concession of bail---Reasonable grounds existed for believing that accused had committed an offence coming within the prohibitory clause of S.497(1), Cr.P.C.---Petition for grant of bail stood dismissed, in circumstances.

Arif Din v. Amil Khan and another 2005 SCMR 1402 and Muhammad Ismail's case PLD 1989 SC 585 ref.

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

----S. 497---Non-bailable offence---Bail, refusal of---If there appeared reasonable grounds for believing that accused was guilty of the offence punishable with death, or imprisonment for life, he would not be released on bail, unless case was covered by any of the provisions in subsection (2) of S.497, Cr.P.C.---Bail, in cases falling in the prohibitory clause of S.497(1), Cr.P.C., was not to be granted as a matter of course with a simple sentence that it was a case of further inquiry, without keeping in view the entire provision of S.497, Cr.P.C.---Discretion vested in the court, was to be exercised in a judicial fashion, in the light of the facts of each case---Where prosecution collected enough material to constitute reasonable grounds, connecting accused with the alleged offence, courts were always slow to accede the request for bail.

M. Anwar Khan Maidad Khel for Petitioner.

Qudratullah Khan Gandapur, A.A.-G. for the State.

Date of hearing: 28th October, 2014.

2015 P Cr. L J 1347

[Peshawar]

Before Assadullah Khan Chamkani, J

ZAHIR REHMAN and another---Appellants

versus

The STATE and another---Respondents

Cr. A. No. 685-P of 2014, decided on 16th March, 2015.

(a) Criminal trial---

----Maxim: Falsus in uno falsus in omnibus---Applicability---Principle of falsus in uno falsus in omnibus has been done away with---Courts while appreciating evidence, apply principle of sifting grain from chaff.

Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Muhammad Haleem and G. Safdar Shah, JJ. Khairu and another v. The State 1981 SCMR 1136; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Irshad Ahmad v. The State PLD 1996 SC 138; Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Ziaullah v. The State 1993 SCMR 155 rel.

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

----Ss. 324 & 337-F(iii)---Attempt to commit qatl-i-amd and ghayr-jaifah mutalahimah---Appreciation of evidence---First offender---Sentence, quantum of---Accused was convicted by Trial Court under Ss.324 & 337-F(iii), P.P.C. and was sentenced to imprisonment for various terms extending up to five years---Validity---Ocular account got strong corroboration from other circumstances such as presence of accused on right side of injured as shown in site plan; direction of injury on right side of injured; bullet marks on his vehicle from the same direction coupled with recovery of blood from driving seat; positive serologist report in respect of blood-stained articles as well as no bullet marks from front seat; which squarely proved that it was the accused who attempted at the life of injured complainant and caused him fire-arm injury---Accused was rightly held guilty of the offence by Trial Court--- Conviction recorded by Trial Court under Ss. 324 & 337-F(iii), P.P.C. was maintained, however he being first offender, High Court took a lenient view and respectively reduced his sentences of imprisonment to two years and one year---Appeal was allowed accordingly.

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

----S. 427---Causing damage to property---Appreciation of evidence---Determination---Accused was convicted by Trial Court for causing damage to car of complainant and sentenced him to imprisonment for one year---Validity---Nothing in black and white was available to show examination of vehicle of complainant through mechanic or technical expert nor was there any shred of evidence from which damage allegedly caused to vehicle of complainant could be determined---High Court set aside the conviction passed by Trial Court and acquitted the accused of the charge---Appeal was allowed accordingly.

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

----Ss. 324, 337-F(iii) & 427---Attempt to commit qatl-i-amd, ghayr-jaifah mutalahimah and cause damage to property---Appreciation of evidence---Surmises and conjectures---Effect---Accused was convicted by Trial Court and sentenced to imprisonment for various terms extending up to five years---Validity---Finding of Trial Court was based on surmises and conjectures---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed accordingly.

Ishtiaq Ibrahim for Appellants.

Muhammad Saeed Khan for the Complainant.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 16th March, 2015.

2015 P Cr. L J 1397

[Peshawar]

Before Abdul Latif Khan, J

SHAH FAISAL and 2 others---Appellants

versus

Mst. NISHAT and another---Respondents

Cr. Appeal No. 97 of 2014, decided on 2nd June, 2014.

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

----Ss. 494, 495, 496, 500 & Chapter XIX, XXI---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Ss. 3, 7 & 22---Sharia Nizame Adal Regulation, Para 10(8)---Criminal Procedure Code (V of 1898), Ss.107, 151, 193, 198, 200, 202 & Chapter XVI---Offence relating to marriage etc. and defamation---Appreciation of evidence---Cognizance of offence by court of session---Defamatory news item---Defamatory statements had admittedly been published in the newspapers for which accused were working as reporters---Accused having levelled allegations against chastity of complainant were liable (to prosecution) for defamation as they failed to prove that (defamatory) statements which were published in newspapers or were given to police in good faith or public interest---Intention of the accused was to disgrace the complainant---Contention of the accused that court of session could not take cognizance of the matter unless case had been sent to such court under S.193, Cr.P.C. was misconceived as S.198, Cr.P.C. provided procedure for prosecution for breach of contract, defamation and offences against marriage---Section 500 of the P.P.C. fell within Chapter XXI, P.P.C., so procedure provided in S.198, Cr.P.C. had to be followed---Complainant herself lodged complaint under S.500, P.P.C. which was exclusively triable by the court of session---Sessions Judge did not commit any illegality in taking cognizance of the offence under S.500, P.P.C. for which special procedure had been given in Chapter XVI, Cr.P.C. regarding complaint cases---Appeal of accused was partly accepted by reducing sentence from 5 years to 2 years.

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

----S. 198---Prosecution for breach of contract, defamation and offences against marriage--- Bar to cognizance--- No court could take cognizance of an offence falling under Chapter XIX or Chapter XXI, Cr.P.C. or under Ss.493 to 496 (both inclusive), P.P.C. except upon a complaint made by some person aggrieved by such offence.

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

----Chapter XVI [Ss. 299 to 338H]--- Scope and application---Chapter XVI, Cr.P.C. provided special procedure for complaint cases.

Fazal Karim and others v. Muhammad Boota and another 1991 SCMR 2157 rel.

Saeed Khan for Appellants.

Malak Ajmal Khan for Respondent No.1.

Muhammad Javid, A.A.-G. for the State.

Date of hearing: 2nd June, 2014.

2015 P Cr. L J 1409

[Peshawar]

Before Muhammad Daud Khan, J

FAKHIR ULLAH---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 237-B of 2014, decided on 22nd September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Accused was directly charged in the promptly lodged report for murdering of deceased---Blood-stained earth and 18 empties of 7.62 bore, collected from the place of occurrence, fully corroborated the version of FIR---Forensic Science Laboratory's report also depicted that empties were fired from different weapons; which further strengthened participation of accused with co-accused---Post-mortem reports of both the deceased, showed intention of accused for committing murder---Site plan, recovery of empties, blood-stained earth, Forensic Science Laboratory report, medical evidence, led to the conclusion that a prima facie case existed against the accused---Accused at bail stage, on tentative assessment, could not get benefit of plea of alibi which would be thrashed out during trial---Plea of cross-version invariably carried phenomena of self-defence in it; and when from record, it was not discernible that as to who had aggressed; and who had acted in self-defence, the parties, were normally allowed bail, but in the present case, on tentative assessment of the evidence, no such circumstance could be gathered, except cross FIR---By raising the plea of cross-version, the occurrence was admitted---Plea of self-defence, was yet to be established by the accused---When prosecution evidence prima facie connected accused with commission of crime entailing capital punishment and accused himself had admitted the occurrence by taking plea of cross-version, cross FIR should not be accepted as licence for grant of bail, particularly, in view of prevailing law and order situation in society---Accused of every cross-case, could not claim bail as a matter of right---Facts of every cross case, were to be tentatively scrutinized and assessed and then to be decided on its own merits---Bail was declined in, circumstances.

Nisar Muhammad Wassan and another v. The State 1992 SCMR 501 and Arif Din v. Amil Khan and another 2005 SCMR 1402 ref.

Ansar ul Haq for Petitioner.

Qudrat Ullah Khan, A.A.-G. for the State.

M. Rasheed Khan Dirmakhel for the Complainant.

Date of hearing: 22nd September, 2014.

2015 P Cr. L J 1419

[Peshawar]

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

IZHAR SHAH and 7 others---Petitioners

versus

The STATE and 2 others---Respondents

Writ Petition No.430-P of 2012, decide don 12th November, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6) & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of criminal case---Failure to comply with order of court of competent jurisdiction---Petitioners, who were all Police Officers, had called in question the judgment/order of Justice of Peace, whereby Justice of Peace, directed the Police Officer to get the case registered against the petitioners---Despite clear order for registration of case, order had not been complied with which was a flagrant violation of the expressed provision of law under S.154 and 22-A(6), Cr.P.C.---Simple registration of case would not mean holding petitioners, guilty for the offences, with which they would be charged in the FIR as registration of FIR would certainly be followed by investigation and trial, wherein they could not only prove their innocence, but could also set process of law in motion against the complainant for lodging a false report---In view of such safeguards and remedies available to the accused/petitioners they had no locus standi to file constitutional petition, and thereby hinder process of law unnecessarily---Constitutional petition was dismissed with direction to PPO/IGP concerned to look into the conduct of concerned SHO and take action deemed appropriate.

PLD 2003 Lah. 228, 2004 P.Cr.LJ 1214; PLD 2005 Kar. 621; 2007 P.Cr.LJ 1939; PLD 2007 SC 539 PLD 2008 Pesh. 53 and 2010 P.Cr.LJ 45 ref.

Br. Kamran for Petitioners.

Khizar Hayat A.A.G. for the State.

Date of hearing: 12th November, 2014.

2015 P Cr. L J 1430

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

RASHID---Petitioner

versus

The STATE---Respondent

Criminal Appeal No.139-A of 2013, decided on 25th September, 2014.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Sample of allegedly recovered contraband, was sent and received by Forensic Science Laboratory with unexplained delay of four days of the occurrence, which had created serious doubt regarding report of Forensic Science Laboratory---No witness from public, was either associated to witness the recovery of charas, or to cite as marginal witness to the recovery memo---Local Police had falsely involved the accused in the case, without brining substantive evidence on record---Prosecution, in circumstances of the case, had not been able to prove its case against accused beyond any shadow of doubt---Accused was acquitted and set free by extending him benefit of doubt---Conviction and sentence recorded by the Trial Court against accused, were set aside, in circumstances.

Khadim Hussain v. The State 2010 YLR 2919 and Muhammad Akram v. The State 2009 SCMR 23 ref.

Shad Muhammad for Petitioner.

A.A.-G. for the State.

Date of hearing: 25th September, 2014.

2015 P Cr. L J 1458

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Ikram Ullah Khan, J

MANZAR---Appellant

versus

MUHAMMAD IQBAL and another---Respondents

Criminal Appeal No.667 of 2010, decided on 18th November, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(ii)(a), 34, 309, 310 & 323---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art.12---Qatl-i-amd, attempt to commit qatl-i-amd, causing Badi'ah and Hashimah---Compromise---Determination of qisas and diyat---Matter was patched up between accused and legal heirs of the deceased, whereby major legal heirs of the deceased pardoned accused in the name of 'Allah Almighty' by waiving the right of 'Qisas and Diyat'---Legal heirs of the deceased, had no objection to the acquittal of accused---Trial Court submitted report affirming the genuineness of compromise arrived at between the parties---Share of diyat amount of the minor legal heir of the deceased was determined and deposited---Right of qisas in qatl-i-amd, could be compounded under S.310 of the P.P.C., at any time by an adult sane wali by accepting "Badl-i-Sulh" which would not be less than the value of diyat, which as per injunctions of Islam, as laid down in the Holy Quran or Sunnah, was thirty thounsand six hundred and thirty grams of silver---Fixation of diyat amount prevailing at the time of compromise, was in accordance with law and in no terms could be considered against the provisions of Art.12 of the Constitution---Appeal was allowed on the basis of compromise arrived at between the parties---Conviction and sentences recorded by the Trial Court against accused, were set aside, and accused was acquitted of the charges levelled against him---Since accused had already been released after payment of balance amount of diyat to the minor son of the deceased, order of High Court qua interim release of accused was confirmed and he was discharged from personal appearance before S.H.O. concerned.

Suo Motu case No.19 of 2011 2012 SCMR 437 and Muhammad Anwar v. State PLD 2012 SC 769 ref.

2012 SCMR 437 rel.

Jalal-ud-Din Akbar Azam Khan Gara for Appellant.

Mujahid Ali Khan, Asstt. A.-G. for Respondents.

Nemo for the Complainant.

Date of hearing: 9th October, 2014.

2015 P Cr. L J 1469

[Peshawar]

Before Muhammad Younis Thaheem, J

MUHAMMAD SHAFIQ KHAN---Petitioner

versus

INAMULLAH---Respondent

Criminal Miscellaneous/BCA No.16-B of 2015, decided on 9th June, 2015.

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

----S. 497(5)--- Penal Code (XLV of 1860), Ss.324, 109 & 34---Attempt to commit qatl-i-amd, abetment, common intention---Pre-arrest bail, cancellation of---Principles---Non-appearance of complainant---Effect---Principal accused had already been released on bail on basis of compromise filed by complainant---Rule of consistency---Scope---Right of co-accused to concession of pre-arrest bail---Concession of pre-arrest bail---Object---Complainant sought cancellation of pre-arrest bail of accused who was alleged to have abetted---Complainant contended that extraordinary relief of pre-arrest bail could not be granted to the accused without pointing out any mala fide on part of prosecution, and that court had not served notice upon him before allowing pre-arrest bail---Accused was admittedly not present at place of occurrence---Complainant had mentioned no source to prima facie prove participation of accused in offence of abetment---Principal accused had already been released on bail on basis of compromise filed by complainant, and against which no application for cancellation of bail had been moved---When all accused were ascribed identical role, out of which one set of accused was granted post-arrest bail and the other accused was extended concession of pre-arrest bail, and complainant chose to challenge pre-arrest bail of one set of accused, pre-arrest bail would not be cancelled as the same would later be allowed on basis of rule of consistency, as co-accused had already been released on post-arrest bail---Bail of accused could not be recalled on technical ground---Two notices had been served upon complainant for his appearance in pre-arrest bail, but he, nevertheless, failed to appear---Under given circumstances of present case, non-appearance of complainant was for understandable reasons, and he, therefore, could not take benefit of his non-appearance---When principal accused had already been released on bail on basis of compromise, contesting the case of present accused was not free from mala fide---Concession of pre-arrest bail was always extended in cases of mala fide and ulterior motive on part of complainant to save innocent people from their unjustified arrest and humiliation at hands of police, and this principle was fully attracted to the present case---No other ground such as misuse of concession of bail or tampering with prosecution evidence or extending threats to complainant by accused had been alleged---Once bail had been granted by competent court, strong and exceptional grounds were required for cancellation thereof, which complainant failed to point out---Impugned order had been passed on merits after proper assessment of material available on record---Petition for cancellation of bail was dismissed accordingly.

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

----S. 498---Pre-arrest bail---Object---Mala fide on part of complainant/prosecution---Principles---Concession of pre-arrest bail is always extended in cases of mala fide and ulterior motive on part of complainant/prosecution to save innocent people from their unjustified arrest and humiliation at hands of police.

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

----S. 497(5)---Pre-arrest bail, cancellation of---Principles---Rule of consistency---Applicability---When all accused are ascribed identical role, out of which one set of accused is granted post-arrest bail and the other accused is extended concession of pre-arrest bail, and complainant chooses to challenge pre-arrest bail of one set of accused, pre-arrest bail will not be cancelled as the same would later be allowed on basis of rule of consistency as co-accused had already been released on post-arrest bail.

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

----S. 497(5)---Bail, cancellation of---Pre-requisites---Once bail has been granted by competent court, then strong and exceptional grounds are required for cancellation thereof.

Muhammad Ramzan v. Zafrullah 1986 SCMR 1380; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 and Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

Inamullah Khan Kakki for Petitioner.

Bashir-ur-Rehman Burki for Respondent.

Qudrat Ullah Khan A.A.G. for the State.

Date of hearing: 9-6-2015.

2015 P Cr. L J 1487

[Peshawar]

Before Mazhar Alam Khan Miankhel, C J

INAYAT-UR-REHMAN and another---Petitioners

versus

The STATE---Respondent

Criminal Miscellaneous (Q.Ps.) Nos.131-P and 132-P of 2014, decided on 12th June, 2015.

Copyright Ordinance (XXXIV of 1962)---

----Ss. 66, 66-A & 67---Penal Code (XLV of 1860) Ss.486 & 109---Criminal Procedure Code (V of 1898), Ss.177 & 561-A---Selling pirated books---Territorial jurisdiction---On information that accused persons were selling pirated books raid was conducted on the shops of accused persons at place 'S' and pirated books were recovered---After completion of investigation, challans were submitted before Judicial Magistrate at place 'P' for trial---Accused persons, during pendency of the cases, submitted applications under S.177, Cr.P.C., for sending their cases to place 'S' on the ground of territorial jurisdiction---Said application was concurrently rejected by the courts below---Petitions for quashing of orders of rejection---Main stance of accused persons, was that as both accused persons hailed from District 'S' and recovery of pirated books had also been effected from the shop situated at 'S', courts at District 'P' due to lack of territorial jurisdiction, were not competent to take cognizance of the matters, as the courts at place 'S' had the jurisdiction to try the cases---Validity---No doubt, under S.177, Cr.P.C., every offence, would ordinarily be inquired in and tried by a court within the local limits of whose jurisdiction, it was committed, but in the present case, the complainant had lodged both the complainants to Deputy Director, FIA at place 'P' against accused persons; and on the basis of such complaints, raids were conducted at the shops of accused persons, situated in District 'S'---Notification issued by Federal Ministry of Interior on 10-5-2006 revealed that the area of jurisdiction of Deputy Director FIA "P", (Peshawar) notified as Police Station to District Peshawar, Charsada, Nowshera, Mardan, Swabi, Kohat, Hangu and PATA for the purpose of Cr.P.C.---No doubt, complainant's office was situated at Peshawar, and Police Station FIA, where the cases had been registered also situated at Peshawar the alleged recovery of pirated books had been made by FIA from Swabi, but District Swabi fell in the territorial jurisdiction of Police Station FIA Peshawar---Judicial Magistrate at Peshawar had the jurisdiction to try the cases pertaining to Police Station, FIA at Peshawar---Impugned concurrent orders, required no interference as same did not suffer from any jurisdictional defect, illegality or material irregularity.

Nemo for Petitioner.

F.M. Sabir Standing Counsel and Arshad Hussain Yousafzai for the State.

Date of hearing: 12th June, 2015.

2015 P Cr. L J 1538

[Peshawar]

Before Qaiser Rashid Khan, J

YAQOOB KHAN and another---Petitioners

versus

The STATE---Respondent

Cr. M. (B.A.) No.1151-P of 2015, decided on 3rd July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Foreign Exchange Regulation Act (VII of 1947), Ss.5 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Passports Act (XX of 1974), S.6---Hundi/Hawala business---Bail, grant of---Further inquiry---Despite prior information, raid was conducted without complying with the mandatory provisions of S.103, Cr.P.C., as no respectables of the locality, were associated to confirm the seizure of the money, documents and registers etc. from accused persons---Money so recovered from accused persons, was Pakistan currency and as to whether the said money belonged to accused persons, or was the amount involved in the business of Hundi/Hawala, was a question, which could only be thrashed out during the course of trial after recording evidence---Case of accused persons, prima facie, was one of further enquiry, entitling them to the concession of bail---Accused were granted bail, in circumstances.

Arshad Hussain Yousafzai for Petitioners.

Malik Muhammad Rehan Awan,Standing Counsel for the Federation.

Date of hearing: 3rd July, 2015.

2015 P Cr. L J 1556

[Peshawar]

Before Muhammad Younis Thaheem, J

TAHIR AZIZ---Petitioner

versus

LAL HABIB and another---Respondents

Criminal Miscellaneous Q.P. No.2-B of 2015, decided on 9th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 324, 331, 337-A(v) & 337-X---Criminal Procedure Code (V of 1898), S.561-A---Attempt to commit qatl-i-amd, causing Shajjah-i-Ammah, payment of Diyat and Arsh---Invoking inherent jurisdiction of High Court for cancellation of bail---Petitioner, by invoking inherent jurisdiction of High Court under S.561-A, Cr.P.C., had prayed for cancellation of bail granted to respondent charged with offences under Ss.337-X & 331(2), P.P.C.---Respondent after serving his sentence filed application before High Court for payment of arsh amount 1/2 of diyat, in instalments, which application was accepted, arsh amount was fixed and respondent was directed to pay the same in sixty equal instalments---Respondent assailed said order of High Court before Supreme Court, by filing petition---Said petition having been withdrawn by the respondent, order of High Court had attained finality---Respondent, failed to deposit monthly instalment onward on 15th of each month as per directive, which was clear violation of order of the High Court---Conduct of the respondent had shown that he was reluctant to pay remaining amount of arsh---Respondent was liable to be committed to jail till final payment of remaining arsh amount under the conditional penal part of the order of High Court---Respondent having violated order of High Court, concession of bail granted through the same order was recalled and he was committed to jail, in circumstances.

Shabir Hussain Gigyani and Pir Hamidullah Shah for Petitioner.

Qudratullah Khan Gandapur, Asstt. A.G. for the State

Pir Liaqat Ali Shah for the Respondent No.1.

Date of hearing: 9th February, 2015.

2015 P Cr. L J 1575

[Peshawar]

Before Ikramullah Khan, J

INAYAT ULLAH---Petitioner

versus

The STATE and another---Respondents

Criminal Quashment Petition No.109-D with Criminal Miscellaneous No.110-D of 2014, decided on 6th November, 2014.

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

----S. 561-A---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant/cancellation of---Quashing of cancellation order, petition for---Conditional bail granted to accused, having been cancelled by Judicial Magistrate, accused had filed petition for quashing of order of cancellation of bail---Contention of accused was that impugned order was against law, as accused was condemned unheard---Contention was repelled as accused was afforded an opportunity to defend himself, who opted to abscond; and neither he surrendered himself to the court nor procured the attendance of his counsel---Further contention of accused was that Judicial Magistrate had no jurisdiction to cancel the bail as court of Magistrate was not vested with such power---Contention was not tenable at all, because under S.497(5), Cr.P.C., High Court or Sessions or any other court could cancel or recall the concession of bail granted to accused---Accused further contended that conditional bail was not the requirement of law; and the very judgment of the Judicial Magistrate, whereby accused was released on conditional bail, itself was against established principles of law---Contention was repelled as accused was not released on bail on merits, but on the basis of compromise, without any objection raised by accused when he was conditionally released on bail---Conditional bail granting order, was never challenged by accused---Court granted bail to accused wherein punishment provided for the offence did not fall within the prohibited clause of S.497, Cr.P.C.---Cancellation of bail was rare phenomenon, but when exceptional circumstance was expressed by the court, in such situation, the court was left with no other option, but to take recourse to the punitive provisions in order to keep balance, decorum as well as dignity and respect of court---Accused did not surrender himself before the Judicial Magistrate on the date when his case was being heard, and thereafter in the High Court he played the same tactics---Such conduct of accused was deplorable one, which amounted to playing mockery on the courts---Petition for quashing of order being bereft of any merit and substance, was dismissed, in circumstances.

Mst. Afshan Bibi v. The State 1998 SCMR 6 and Babar Afzal v. Presiding Officer and 2 others 2010 P.Cr.LJ 1293 ref.

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

----S. 561-A---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope---Jurisdiction conferred upon High Court under S.561-A, Cr.P.C. could not be used to circumvent the normal procedure as provided under Criminal Procedure Code for redressal of a particular grievance---Such powers could rarely be exercised in cases, wherein law warranted interference to secure the ends of justice; and to prevent the abuse of process of any court, or when it was observed that gross injustice and miscarriage had occasioned by any court---Mandate of law was not to determine the fate of a criminal case in exercise of inherent powers of High Court envisaged under S.561-A, Cr.P.C., to deviate or to depart from the normal course; and such deviation from normal course, was always pregnant with risk of being led astray---Petition for quashment was dismissed, in circumstances.

Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298 ref.

Abdul Rashid Khan and Sh. Iftikharul Haq for Petitioner.

Sanaullah Shamim Addl. A.G., for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 6th November, 2014.

2015 P Cr. L J 1584

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

Mst. SHOPARI BIBI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.34-B of 2010, decided on 5th March, 2014.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---Report was lodged after a delay of 1 hour and 46 minutes---Explanation furnished by the complainant for such delay was not plausible and she failed to establish the motive---Keeping in view inordinate delay in lodging report, coupled with non-proof of motive, it could safely be said that the time inter se the alleged incident and report, had been consumed by the complainant in deliberation and consultation---Identification of accused in odd hours of night, did not seem possible in absence of any source of light/bulb---Testimony of solitary eye-witness of complainant, who was mother of the deceased, must get corroboration through evidence coming from unimpeachable source---In view of close relationship of the complainant with the deceased being her real son, her status could not be excluded from the category of interested and inimical witness and her testimony was to be scrutinized with great care and caution---Statement of complainant was full of doubts, contradictions and improvements, which created serious doubts about its veracity---Ocular account of complainant was disbelieved as the same was not trustworthy and was further contradicted the medical evidence---Statement of Investigating Officer, did not support the prosecution version---Statement of the Investigating Officer showed that deceased was hardened, desperate criminal and was charged in several different FIRs, including the cases of murder---Possibility that the deceased would have been done to death by any other enemy, could not be ruled out---Mere positive report of Forensic Science Laboratory with regard to the crime empties, could not advance the case of prosecution, when the ocular/substantial evidence failed---Prosecution could not take any premium from abscondence of accused, when ocular account was disbelieved being full of doubts and material contradictions---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court sitting, in appeal against acquittal, always 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 bare misreading or non-reading of any material evidence---In the present case, no such infirmity had been found in the impugned judgment---Trial Court had rightly acquitted accused extending him benefit of doubt, after proper appreciation of evidence, for which no exception could be taken---Impugned judgment of acquittal was maintained, and appeal against acquittal was dismissed, in circumstances.

Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Dr. Israr-ul-Haq v. Muhammad Fayyaz, and another 2007 SCMR 1427; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 ref.

(b) Criminal trial---

----Motive---Motive, was always considered as a double edged weapon, which cut both ways, and it could be used by accused to take revenge and at the same time, could be a tool used by the complainant for false charge as well.

(c) Criminal trial---

----Benefit of doubt---Prosecution was bound to establish guilt of accused beyond shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence, enabling the court to draw conclusion; whether prosecution had succeeded in establishing accusation against accused or otherwise and if it would come to the conclusion that the charge, so levelled against accused had not been proved beyond reasonable doubt, then accused would become entitled for his acquittal---Requirement of the criminal case was that prosecution, was duty bound to prove its case beyond any reasonable doubt, and if any single and slightest doubt was created, benefit of the same must go to accused; and it would be sufficient to disbelieve the prosecution story; and held accused for acquittal---Not many doubts were required in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence pricking the judicial mind, was sufficient for acquittal of accused---Accused, was always considered as the most favourite child of law; and every benefit of doubt would go to accused, regardless of fact whether he had taken any such plea or not.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

(d) Criminal trial---

----Absconsion---Scope---Mere absconsion, was not conclusive proof of guilt of accused---Value of abscondence would depend on the facts of each case---Absconsion of accused could be consistent with the guilt or innocence of accused, which was to be decided keeping in view, overall facts of the case---Abscondence though was 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.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 ref.

Syed Hamood-ur-Rehman for Appellant.

Saifur Rehman Khattak, A.A.G. for the State.

Anwar ul Haq for Accused.

Date of hearing: 5th March, 2014.

2015 P Cr. L J 1603

[Peshawar]

Before Assadullah Khan Chamkani and Lal Jan Khattak, JJ

DARWAIZ KHAN alias GUL and another---Appellants

versus

Mst. NISHAT and another---Respondents

Criminal Appeal 724 of 2011, decided on 23rd January, 2014.

(a) Criminal trial---

----Registration of FIR after preliminary investigation---Effect---When report is lodged after preliminary investigation, then conclusion is that occurrence has not take place in the manner and style as stated by eye-witnesses.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical and ocular evidence---Contradiction---Effect---Both the accused were convicted by Trial Court and were sentenced to imprisonment for life---Validity---Prosecution alleged that both the accused made indiscriminate firing at deceased while Medical Officer found single firearm injury on the person of deceased and not a single empty was recovered from the spot---In absence of empties from the spot, responsibility of murder of deceased could not be saddled on any of the two accused---Prosecution failed to prove guilt against accused beyond any shadow of doubt, therefore, their conviction could be maintained---High Court extended benefit of doubt to both the accused persons and acquitted them of the charge---Appeal was allowed accordingly.

Barkat Ali's case 2007 SCMR 1812 and Abdul Subhan's case PLD 1994 SC 178 ref.

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

----S.302---Murder---Medical evidence---Scope---Medical evidence could show that deceased died due to firearm injury but could not connect accused with crime.

(d) Criminal trial---

----Evidence---Corroboration---Scope---Corroborative piece of evidence is meant to test the veracity of ocular evidence---Both corroborative and ocular testimonies are to be read together and not in isolation.

Noor Muhammad v. The State 2010 SCMR 97 rel.

(e) Criminal trial---

----Conviction---Principle---Conviction must be based on unimpeachable evidence with certainty of guilt and any doubt arising in prosecution case must be resolved in favour of accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

(f) Administration of justice--

----To err in acquittal is better than to err in conviction.

Zahoor-ul-Haq for Appellants.

Muhammad Ajmal Khan for the Complainant.

Abida Safdar for the State.

Date of hearing: 23rd January, 2014.

2015 P Cr. L J 1614

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Abdul Latif Khan, J

ABDUL QAYYUM KHAN---Petitioner

versus

DIRECTOR GENERAL NATIONAL ACCOUNTABILITY BUREAU through Deputy Prosecutor-General (NAB) and 3 others---Respondents

Writ Petition No.1013-P of 2014, decided on 24th March, 2015.

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

----Ss. 221, 222, 223, 227 & 537--- Charge, framing of--- Object, scope and purpose--- Charge as a matter of fact is precise formulation of specific accusation made against a person who is entitled to know its nature at the earlier stage---Purpose of charge is to tell an accused as precisely and concisely as possible, the matter on which he is charged and must convey to him with sufficient clearance and certainty as to what material prosecution intends to produce against him of which he would have to clear himself---Errors committed in stating either offences or particulars required to be stated in the charge or omission in that behalf cannot be treated as material unless accused is in fact misled by such errors or omissions and further it also occasioned a failure of justice---In absence of prejudice to accused, neither trial can be held illegal nor conviction can be set aside in presence of curing provisions contained in Ss.227 & 537, Cr.P.C.

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

----S. 9(a)(iv) & (v)--- Criminal Procedure Code (V of 1898), S.227---Constitution of Pakistan, Art.199---Constitutional petition---Amendment of charge---Petitioner was facing trial under National Accountability Ordinance, 1999, and he was aggrieved of amendment of charge made by Trial Court---Validity---Charge could be amended or altered or added at any time before judgment was pronounced---Court could always alter the charge at any point of time either on an application or on its own---Prosecution evidence was not completed and accused was also yet to be examined under S.342 Cr.P.C. whereafter judgment was to be announced---Trial Court had rightly passed order for addition of clauses (iv) and (v) of S.9(a) of National Accountability Ordinance, 1999---Trial Court, under S.227, Cr.P.C. could alter or add to any charge at any time before judgment was pronounced and had rightly directed that such alteration would be read and explained to petitioner/accused---High Court declined to interfere in the order passed by Trial Court, as petitioner failed to point out any illegality or irregularity in the order---Petition was dismissed in circumstances.

Abdul Sattar Khan for Petitioner.

Azim Dad, ADPG NAB for Respondents.

Date of hearing: 24th March, 2015.

2015 P Cr. L J 1718

[Peshawar]

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

ABDUL WAHEED---Appellant

versus

The STATE---Respondent

Criminal Appeal No.78-A of 2011, decided on 14th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(c), 309(2) & 34---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, waiving of qisas, common intention---Compromise---Appreciation of evidence---Complainant, was not an eye-witness, as he himself stated in the FIR that he was attracted to the spot on hearing of fire shots---No eye-witness was produced by the prosecution and the prosecution case was based on the confessional statement of accused, which was also reiterated in his statement under S.342, Cr.P.C.---Major legal heirs of deceased wife of accused, entered into compromise with accused and recorded their statements in the Trial Court to the effect that they had pardoned the accused---Deceased wife of accused, was also survived by a minor brother and minor sister, who were being looked after by their mother; who expressed no objection to the acquittal of accused on behalf of her minor children---Trial Court while acquitted co-accused due to lack of proof, convicted accused for qatl-i-amd of brother of the complainant and sentenced him to rigours imprisonment of fourteen years, with fine of Rs.100000---Trial Court accepted plea of sudden provocation to the extent of qatl-i-amd of brother of the complainant, and convicted accused under S.302(c), P.P.C., but declined to accept the plea of sudden provocation in respect of qatl-i-amd of wife of accused, on the ground that qatl-i-amd of both deceased was committed by different weapons---Entire case of the prosecution, hinged on the confessional statement of accused, reiterated in his statement under S.342, Cr.P.C.---Confessional statement being solitary piece of evidence, must have been relied upon in toto, without any pick and choose---Since the occurrence and qatl-i-amd of both the deceased was for the same reason i.e. sudden provocation of accused after seeing his deceased wife in objectionable condition with deceased/brother of the complainant, use of different weapons of offence and difference in time of death and post-mortem of the deceased, became immaterial, so as to judge the 'qatl-i-amd' of the two deceased differently by holding one of result of sudden provocation, and the other devoid of such considerations, rendering the same liable to 'qisas'---Trial Court should have, either accepted compromise between major legal heirs of deceased wife of accused also on behalf of her minor legal heirs, or should have convicted accused under S.302(c), P.P.C., while accepting the defence plea of grave and sudden provocation in respect of 'qatl-i-amd' of deceased wife of accused as well---Conviction of accused and making him liable to pay "diyat" to the minor legal heirs of deceased wife, was not justified, in circumstances---Accused having already undergone the substantive sentence of imprisonment, including sentence in default of payment of compensation, enhanced sentence of death, as prayed by complainant, would amount to double jeopardy---Petition of complainant in that respect being bereft of substance, was dismissed, in circumstances---Appeal to the extent of conviction of accused under S.302(c), P.P.C., in respect of 'qatl-i-amd' of deceased brother of the complainant, was dismissed as not pressed while his conviction and liability to pay 'diyat' to the minor legal heirs, deceased wife of accused, was converted into conviction under S.302(c), P.P.C.---Accused was deemed to have been sentenced to rigorous imprisonment for a term of 14 years with fine of Rs.100,000, with benefit of S.382-B, Cr.P.C.

2004 SCMR 1808; 1992 SCMR 2017; PLD 1996 Kar. 316; 2002 MLD 1277 and 2002 SCMR 1993 ref.

Qazi Shams-ud-Din for Appellant.

A.A.-G. for the State.

Yar Muhammad for the Complainant.

Date of hearing: 14th April, 2015.

2015 P Cr. L J 1741

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

MOMIN-UR-REHMAN---Appellant

versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No.94 of 2014, decided on 26th November, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-F(iii)---Qatl-i-amd, causing Mutalahimah---Appreciation of evidence---Benefit of doubt---Cross-case was registered by the accused, and time and spot of occurrence in both cross cases were one and the same---Occurrence had taken place as a result of sudden provocation which resulted in death of deceased and injuries to both the parties---Court statement of the complainant was contradictory to his statement in the report and also to the statement of other prosecution witnesses---Statements of eye-witnesses were also contradictory to the report as well as the statement of complainant---As to who had caused fatal blow to the person of deceased could not be determined in view of eye-witness account---Investigating Officer was unable to state as to which of the two groups, the recovered knives belonged---Primary duty of the Investigating Officer in a cross case was to investigate as to who was the aggressor and who was aggressed upon, but he expressed his inability to categorically affirm said fact---Facts and circumstances revealed that a free fight had taken place between the two rival groups which resulted in the death of deceased and injuries to both the sides---Right of self-defence could not be ruled out, in circumstances---Post-mortem report did not find support from the ocular account furnished by the eye-witnesses, and recoveries effected from the spot---Material contradictions/improvements in the statement of eye-witnesses, could not be relied upon for the purpose of conviction---Accused, in circumstances, was entitled to the benefit of doubt and he was acquitted of the charge leveled against him, and was set free in circumstances.

Ghani-ur-Rehman v. The State and others 2009 YLR 2169; Ansar Mahmood v. The State 2011 SCMR 1524 and Mushtaq Hussain and another v. The State 2001 SCMR 45 rel.

Sher Muhammad Khan for Appellant.

Sabir Shah, A.A.G. for the State

Shabir Hussain Gigyani for the Complainant.

Date of hearing: 26th November, 2014.

2015 P Cr. L J 1798

[Peshawar]

Before Assadullah Khan Chammkani, J

MUHAMMAD USMAN RAEES---Applicant

Versus

The STATE---Respondent

Criminal Misc. Bail Application No. 1501-P of 2015, decided on 7th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.462-C---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S.25(d)---Consuming of natural gas through an illegal direct line connection---Bail, grant of---Neither the Federal Investigating Agency Officials, nor the Police had collected incriminating evidence in support of allegations levelled against accused in the FIR---Nothing in black and white had been brought on record in respect of the alleged factory to be the ownership of accused---General public, in such like cases, did not stand witness against the others, such cases were always built up through incriminating evidence; such as recoveries from the spot---Federal Investigating Agency, and the Police, had not taken pain to collect any such incriminating evidence---No site plan had been prepared---No proper report, qua damage caused by accused to the Government Exchequer had been assessed---General assessment report in respect of damage of entire year, it had not been clarified, specifically as to how much damage accused had caused to the Public Exchequer through illegal connection---High Court observed that Law Enforcing Agencies, were dealing with such cases in a casual manner, which ultimately resulted in acquittal of the offenders---Case of accused was arguable for the purpose of bail--- Applicability of S.462-C, P.P.C., in presence of S.25(d) of Oil and Gas Regulatory Authority Ordinance, 2002, which was a special law, was yet to be determined during trial---Section 462-C, P.P.C., provided punishment of imprisonment, which could extend to ten years and with fine to the extent of three millions rupees, while punishment provided under S.25(d) of Oil and Gas Regulatory Authority Ordinance, 2002 was imprisonment which could extend to three years---When accused was charged under two different statutes for the same offence, the offence having lesser sentence, was taken into consideration for the purpose of bail, on that ground too, accused was entitled to concession of bail.

Arshad Hussain Yousafzai for Applicant.

Abdul Latif Khan Standing Counsel for Federation, DAG.

Date of hearing: 7th September, 2015.

2015 P Cr. L J 62

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akthar Afghan, JJ

SAEED AZAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.74 of 2014, decided on 10th September, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Accused, in the present case, was substituted by the Police, which was evident from the conduct of Police which had let off the accused after taking his personal surety, without any lawful authority and jurisdiction, in view of the fact that huge quantity of contraband was recovered from his possession---Letting free the real accused in the case, smacked of mala fide of the Police---Trial Court had failed to properly assess and appreciate the evidence on record---Investigating Officer admitted the fact, that neither the samples were drawn in his presence, nor same were sent to Forensic Science Laboratory, nor parcels were prepared in his presence; and he did not even receive any report from Forensic Science Laboratory---Prosecution had failed to tender any plausible explanation for delay in sending the samples for analysis---Prosecution, despite having prior information in respect of smuggling of narcotics had failed to make proper arrangement for associating an independent witness to strengthen the prosecution case---Section 25 of Control of Narcotic Substances Act, 1997, had excluded application of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997, but there must be plausible explanation on the part of Investigating Officer showing his inability for not complying with such provisions of law---Accused having taken the plea that he was substituted by the Police; and the real culprit was set at liberty, false implication of accused, could not be ruled out of consideration---Prosecution witnesses, were declared hostile, as they specifically denied the fact that they were the members of raiding party, which recovered the contraband from the possession of accused; and even they did not sign the recovery memos prepared by complainant/Investigating Officer---Prosecution had also failed to collect any material, with regard to ownership of vehicle, in question---Nothing was on record that said vehicle was owned by accused, or that he was driving the same---Prosecution had failed to bring home the charge against accused beyond any shadow of doubt--- Entire case of prosecution was defective, doubtful and full of contradictions---Judgment of the Trial Court, which suffered from misappreciation, non-reading and mis-reading of evidence available on record, was set aside, accused was acquitted of the charge and was released, in circumstances.

Muhammad Qahir Shah and Rehmat Ullah Sadozai for Appellant.

Atiq Khan, Deputy Prosecutor-General for the State.

Date of hearing: 8th July, 2014.

2015 P Cr. L J 105

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

AMIR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 161 of 2014, decided on 30th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)--- Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Both parties pelted stones and used sticks, due to which the deceased received injuries---Court witness had not assigned any role to accused of inflicting knife blow on the head of deceased---Medical certificate of the deceased, was also silent in respect of injuries, and nature of injuries on the person of deceased---Fight took place all of a sudden, and accused did not act in preplanned and premeditated manner to take the life of the deceased---Accused, in a sudden flare up and in the heat of passion, acted in a manner, which could not be justified to bring his case within ambit of S.302(b), P.P.C.---Circumstances of the case diminished the liability of accused, and act committed by him, fell under S.302(c), P.P.C.---Conviction of accused recorded under S.302(b), P.P.C., was converted into offence under S. 302(c), P.P.C., and sentence of accused was reduced from life imprisonment to imprisonment of ten years; and payment of compensation was also reduced from Rs.100,000 to Rs.50,000.

Azmatullah v. The State 2014 SCMR 1178 ref.

Masoom Khan Kakar for Appellant.

Miss Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 25th September, 2014.

2015 P Cr. L J 193

[Balochistan]

Before Shakeel Ahmed Baloch and Ghulam Mustafa Mengal, JJ

GUL KHATOON---Petitioner

Versus

Haji MUHAMMAD ASLAM and 13 others---Respondents

Constitutional Petition No. 731 of 2013, decided on 19th November, 2014.

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

----S. 11---Child Marriage Restraint Act (XIX of 1929), Ss.4 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Alleged abduction of a sui juris girl---Plea of marriage by alleged abductee---Consent of wali---Requirement---Scope---Petitioner, mother of alleged abductee girl, had sought production of her daughter and registration of F.I.R. against respondents---Alleged abductee in her statement before the Judicial Magistrate, had stated that she was never abducted by any one, rather she entered into wedlock with the respondent with her free will and consent---NADRA Authorities had verified that alleged abductee's age was 25 years, and Nikah Nama had shown that she was legally married to respondent---Alleged abductee, herself appeared before the High Court, and confirmed that no one had abducted her and that she had married with the respondent with her consent and free will---Alleged abductee, who had attained the age of majority, and being sui juris Muslim, had every right to exercise her full social and civil rights; and by exercising such right, she entered into valid Nikah/marriage with respondent---Such marriage was not in violation of the provisions of the Child Marriage Restraint Act, 1929---"Will" and 'consent' of guardian/wali, in the case of marriage of sui juris Muslim girl, was not required; as sui juris Muslim female could enter into valid Nikah/marriage of her own free will and such marriage was not invalid on account of the alleged absence of consent of wali---Marriage of alleged abductee with respondent being in accordance with Islamic Law, allegations levelled by her mother were based on mis-understanding and misconception, having no legal footings---Constitutional petition was dismissed.

Mst. Shazia and another v. S.H.O. Police Station Kumb, District Khairpur and 7 others 2011 YLR 493 and Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219 ref.

(b) Words and phrases---

----"Sui juris"---Defined and explained.

Black's Law Dictionary, seventh edition rel.

Mrs. Sabira Islam for Petitioner along with Petitioner and abductee Mst. Khadija.

Nazim-ud-Din, A.-G. and Shai Haq, A.A.-G. for Respondents.

Date of hearing: 25th September, 2014.

2015 P Cr. L J 382

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

SANAULLAH---Petitioner

Versus

The STATE through Prosecutor-General---Respondent

Criminal Revision No. 6 of 2014, decided on 25th April, 2014.

Penal Code (XLV of 1860)---

----S. 411---Dishonestly receiving stolen property (Motor-cycle)---Appreciation of evidence---Benefit of doubt---Accused was charged under S.411, P.P.C., but the necessary ingredients for constituting the offence under S.411, P.P.C., were missing in the prosecution case---Complainant in F.I.R. had mentioned that he, after having received an information on telephone lodged the present report---Without any cogent and reliable evidence, alleged information received by the complainant, being hearsay, same was not admissible in evidence---Such aspect of the case, was neither attended by the Trial Court, nor was considered by Appellate Court below---Irrespective of question of dishonesty and knowledge of accused, prosecution, even could not prove that the motor-cycle in question was stolen property---Accused at the time, when alleged robbery took place, was only 10 years old and it could not be presumed that accused had himself committed robbery---Question of receiving stolen property, would not be helpful in circumstances---Prosecution was bound to establish the facts through which the court could infer that accused, either knew or had reasonable grounds for believing that motor-cycle in question was stolen one, but prosecution failed to do so---Without establishing the dishonesty, followed by knowledge of accused, no conviction could be recorded against accused---Rule of prudence, stipulated that prosecution had to prove its case beyond the shadow of any doubt---Accused had not to prove his innocence, until and unless proved guilty---Benefit of slightest doubt would necessarily be extended in favour of accused and not otherwise---Prosecution having failed to establish that motor-cycle in question was stolen property, accused was acquitted of the charge---Accused being on bail, his bail bond was discharged after expiry of appeal period.

Mukhtar Ali v. The State PLD 1971 SC 725 ref.

Petitioner in person.

Naseeruddin Mengal for the State.

Date of hearing: 25th April, 2014.

2015 P Cr. L J 465

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ

ROZI KHAN---Appellant

Versus

MUHAMMAD ASIF and another---Respondents

Criminal Acquittal Appeal No. 12 of 2014, decided on 30th June, 2014.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii), 337-F(i)(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Causing Shajjah-i-Mudihah, Damiyah, Badiah and common intention---Appeal against acquittal---Reappraisal of evidence---Accused and his real brother, were nominated towards commission of the offence; and allegation of offence under S. 34, P.P.C. was also levelled against them to establish the factum of sharing common intention---Testimony of injured witnesses, when read in conjunction with medical evidence, however, altogether portrayed a different picture in respect of the occurrence---Glaring contradiction existed between the ocular and medical testimony---Accused, could not be held responsible for causing injuries, or the occurrence had not been stated in the manner, as it was committed---Sufficient doubt was created in respect of affixing the vicarious liability of injuries caused to the complainant---Principle of "falsus in uno falsus in omnibus", which was part of the English Law, was not recognized by the criminal legal system of Pakistan, due to complexities of tribal system in the society, as possibility of false implication could not be ruled out---Accused would carry double presumption of innocence in case of acquittal; first one, which contemplated that accused was presumed to be innocent till proved guilty and secondly after securing the acquittal, he would acquire legal vested right beyond the presumptions, because after a complete trial, court would reach to the conclusion, and would acquit accused---Courts were normally reluctant to interfere with the verdict of acquittal, unless it was proved on record that the verdict of acquittal was perverse, artificial, fanciful, fictitious or based upon non-reading of evidence, particularly, or if the acquittal was rendered against the settled law---Impugned judgment, whereby accused was acquitted of the charge, was unexceptional, and did not warrant any interference.

Muhammad Usman Yousafzai for Appellant.

Date of hearing: 12th June, 2014.

2015 P Cr. L J 539

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

NAWAB KHAN alias DAH KHAN and others---Petitioners

versus

The STATE and others---Respondents

Criminal Revisions Nos. 70 and 78 of 2011, decided on 19th January, 2015.

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

----Ss. 439, 423, 426, 427 & 428---Revisional jurisdiction, exercise of---High Court within the mandate of S. 439, Cr.P.C., had power to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order, recorded or passed by the criminal courts---While exercising the powers under S. 439, Cr.P.C. powers available to an Appellate Court under Ss.423, 426, 427 & 428, Cr.P.C. would also become available---Accused persons were to point out the errors and the illegalities on part of the Trial/Appellate Courts and irregularities of a nature, which could vitiate the trial or the final order.

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

----Ss. 337-A(i) & 337F(v)---Criminal Procedure Code (V of 1898), S.439-A---Causing Shajjah-i-Khafifah, hashimah---Appreciation of evidence---Petition for enhancement of sentence---Scope---Trial as well as Appellate Court, in their judgments remained contended on the explanation submitted by the Investigating Officer, with regard to delay in filing of the FIR---Reason assigned by the Investigating Officer in that regard, having remained unrebutted, was rightly relied by the courts below---None of the witnesses suggested the facts, nor anything was placed on record to establish mala fide on the part of the witnesses---Mere relationship of the witnesses with the complainant, was not a legal ground to discard their evidence, until, mala fides were established to discard their evidence, which could result in false implication of accused persons---Existence of relationship, was of no legal effect, nor fatal to the case of the prosecution---No material discrepancies, were pointed out in the statements of the witnesses, which could diminish the credibility of their testimony---Both the Trial and Appellate Court below, not only discussed the evidence produced in the defence by accused persons, and gave it due consideration, but did not find the defence plea as confidence inspiring---No instance of misappreciation, or non-appreciation of the material on the record, were pointed out, which skipped the notice of the courts below---Finding recorded by the courts below, about guilt of accused persons, did not suffer from any legal infirmity and did not require reappraisal of evidence---In presence of ample evidence, mere fact that on the basis of minor variations in the statements, a different inference, could be drawn from the material, than the one drawn by the courts below was no ground for making any interference in the findings of courts below in exercise of revisional jurisdiction---Accused, were rightly convicted and sentenced by courts below---Complainant, despite having knowledge, opted not to question the quantum of sentence before the Appellate Court below, which was fully equipped with the power within the mandate of S. 439-A, Cr.P.C.---Complainant could not file revision petition for enhancement of sentence of accused persons.

Syed Ghulam Murtaza v. Baber Akbar 1991 PCr.LJ 720; Paresh Nath Chakraborty Sunamganj Municipal Board v. M.H. Obaidur Raja PLD 1963 Dacca 728; Arshad Ali alias Achhu v. The State 2002 SCMR 1806; Nazar Ahmed v. Nazar Muhammad 1984 PCr.LJ 867 and Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12 ref.

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

----S. 439--- Revisional jurisdiction--- Scope--- Scope of revisional jurisdiction was limited, not to re-open a question of fact unless it suffered from any illegality to make an order perverse or unjust---Where neither substantial question of law was involved, nor misappreciation or non-appreciation of facts and evidence, was established, concurrent findings of the courts below, need not to be interfered with under revisional jurisdiction.

Muhammad Qahir Shah for Petitioners.

Amir Hamza, Deputy Prosecutor-General for the State.

Manzoor Ahmed Rehmani for the Complainant.

Date of hearing: 2nd December, 2014.

2015 P Cr. L J 621

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ

MOHAE-UD-DIN---Petitioner

versus

The STATE through Prosecutor-General Balochistan---Respondent

Constitutional Petition No. 900 of 2014, decided on 5th January, 2015.

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

----Ss. 9(a)(vi) & 33-B--- Criminal Procedure Code (V of 1898), S. 497(2)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Bail, grant of---Case of further inquiry---Documentary evidence---Corruption and corrupt practices in tendering process---Proof---Petitioner was arrested by National Accountability Bureau on the allegation of committing corruption and corrupt practices in process of tenders for construction of parliament lodges---Validity---Allegation against petitioner was based upon presumption alone because rightly or wrongly it was disclosed that during earlier round of bidding process fictitious publication was made and whole process was cancelled and new pre-qualifications were invited---Earlier bidding process was cancelled on initiative of petitioner and Bank transaction of two private individuals was termed/presumed as transaction on behalf of petitioner---Allegation in respect of Bank transaction and involvement of petitioner with the object to secure pecuniary gain, related to evidence, which at such stage could easily be termed as question of further inquiry---High Court accepted bail of petitioner when relevant record was in possession of National Accountability Bureau authorities and there was no possibility of tampering with documentary evidence and main allegation of misuse of authority required further probe---Petition was allowed in circumstances.

Saeed Ahmed v. The State 1995 SCMR 170 and Ejaz Akhtar v. The State 1978 SCMR 64 ref.

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

----S. 14(a)--- Corruption and corrupt practices--- Presumptions---Prosecution, in the light of concept of criminal administration of justice is not absolved of its duty to prove charge beyond reasonable doubt.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

Syed Ayaz Zahoor and Adnan Kasi for Petitioner.

Ch. Mumtaz Yousuf Deputy Prosecutor-General NAB and Amir Zaman Jogizai, Senior Prosecutor NAB for the State.

Date of hearing: 17th December, 2014.

2015 P Cr. L J 808

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

ABDUL SALAM---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.58 of 2014, decided on 24th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(1), provisos third & fourth---Penal Code (XLV of 1860), Ss.302, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 21-D(2)---Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, common intention---Bail, refusal of---Accused along with co-accused were nominated in promptly lodged FIR---FIR was lodged prior to recovery of dead body which was recovered cuffed in shackles of iron loops---Information provided in the FIR, and the statements of witnesses, were corroborated with subsequent circumstances of the case---Act of accused and co-accused, amounted to terrorism, which included actions causing alarm, fright, panic, horror, fearfulness etc.---Accused persons, would not be entitled to earn the concession of bail on basis of statutory delay being offenders of the case of terrorism---Bail application of accused, was dismissed, in circumstances.

Sudheer v. The State 2009 YLR 296; Muhammad Iqbal alias Bali v. The State 2008 YLR 864; Mujahid alias Billa v. The State 2008 YLR 1449; Abdul Wahid Junejo v. The State 1997 PCr.LJ 1808; Muhammad Saqib v. The State 2007 YLR 694; Gul Hassan Shah v. The State 1990 MLD 1542; Riasat Ali v. Ghulam Muhammad and another PLD 1968 SC 353; Muhammad Aslam v. The State 2005 PCr.LJ 437 and Atto alias Muhammad v. The State PLD 2008 Kar. 177 distinguished.

Imtiaz Ahmed v. The State PLD 1997 SC 554; Rizwan Hussain v. The State 1999 SCMR 131; Muhammad Shafique v. The State 1998 PCr.LJ 1229 and Mst. Badrunnisa Jatoi and others v. The State 2000 PCr.LJ 428 ref.

Manzoor Ahmed Rehmani for Applicant.

Abdul Sattar Durrani, Additional Prosecutor-General for the State.

Date of hearing: 15th July, 2014.

2015 P Cr. L J 852

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Kamran Mulakhail, JJ

ABDUL REHMAN KEHTRAN---Applicant

versus

The STATE---Respondent

Criminal Bail Application No. 36 of 2014, decided on 3rd June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497--- Pakistan Arms Ordinance (XX of 1965), S.13(b)---Explosive Substances Act (VI of 1908), Ss.4 & 5---Possessing unlicensed arms, recovery of illicit arms, ammunitions and explosive---Bail, refusal of---Huge quantity of illicit arms, ammunitions and explosives were recovered from the house of accused where he was present at the time of raid---Neither any defence was introduced nor the alleged recovery of arms and ammunitions was denied by accused---Prosecution case, in circumstances, carried sufficient evidence against accused---Accused, the detainees and the eye-witnesses were present at the time of raid, and their statements were recorded promptly---Question of further inquiry would not arise, in circumstances--- Accused was member of the Provincial Assembly and was also member of a political party, which remained in power for reasonable time in the Province, it was not possible, in circumstances that local residents of his town, despite being police personnel would falsely depose against accused---Accused was involved in a series of criminal cases and remained fugitive from law, but nobody in the hierarchy of District Administration and District Police dared to arrest him---Possibility of false implication of accused, absolutely did not arise; and prima facie reasonable evidence was available on case file which disentitled accused to be admitted to bail---Alleged offences, were not bailable and fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Accused had failed to make out a case for grant of bail---Bail application of accused, was dismissed, in circumstances.

Kamran Murtaza, Manzoor Ahmed Rehmani and Tahir Ali Baloch for Applicant.

Sultan Mehmood, Special Prosecutor for the State.

Date of hearing: 12th May, 2014.

2015 P Cr. L J 907

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD QASIM---Petitioner

versus

AHSAN RAZA and 2 others---Respondents

Criminal Revision No. 24 of 2014, decided on 19th March, 2015.

Illegal Dispossession Act (XI of 2005)---

----S. 5---Criminal Procedure Code (V of 1898), S. 265-K---Illegal dispossession---Complaint, withdrawal of---Petitioner was a complainant in similar complaint which was withdrawn and Trial Court declined to implead petitioner as complainant---Validity---Complaint neither contained names of witnesses nor gist of evidence---No assertion on the part of petitioner was available on record that despite providing necessary details Trial Court failed to summon the persons intended to be produced as witnesses---Trial Court might have recorded findings in exercise of powers available under S. 265-K, Cr.P.C. instead of allowing complaint to be withdrawn---Order of acquittal of accused was to be recorded in each case---Trial Court in the judgment, discussed the material available before it and dismissed complaint for want of merit---Trial Court, though had not skillfully wrote the order but had arrived to a correct decision only with an error as it required to record an order of acquittal in favour of accused on dismissal of complaint---High Court upheld the order passed by Trial Court as the same was just and proper and complaint was dismissed for want of merit, while accused was acquitted of the charge---High Court directed Provincial Government to look into the affairs of education institution and to keep it on right path to save the children, who were real affectees---Revision was disposed of accordingly.

Habib Tahir for Petitioner.

Amir Hamza, Deputy Prosecutor-General for Respondents.

Date of hearing: 4th December, 2014.

2015 P Cr. L J 944

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shakeel Ahmed Baloch, JJ

DAD MUHAMMAD alias DADA---Appellant/Convict

versus

The STATE---Respondent

Criminal Appeal No. 32 of 2015, decided on 19th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Anti-Terrorism Act (XXVII of 1997), Ss.19 & 39-B---Constitution of Pakistan, Arts.9, 10 & 10-A---Qatl-i-amd, attempt to commit qatl-i-amd---Conviction in absentia---Appreciation of evidence---Co-accused were arrested and challaned---Process to the extent of accused was issued and subsequently accused was declared as proclaimed offender---Charge was framed to the extent of accused in absentia, and after recording evidence, he was convicted and sentenced to death---Accused could not be arrested for a long period after pronouncement of judgment---Accused at last was arrested and he filed appeal for setting aside his conviction---Possibility existed that accused did not present himself before the court due to lack of information and not deliberately to evade justice, as according to accused he was not aware of the fact that a case had been lodged against him---Question whether accused was aware about the case, or he was unaware, could not be resolved without leading evidence on that particular point---Accused was not convicted according to law, because the pre-requisites of fair trial were not provided to him---Procedure adopted by the Trial Court, was not in accordance with the law and Arts.9, 10 & 10-A of the Constitution---When no charge was framed and the evidence in respect of wilful absconsion was not led by the prosecution, conviction would be against the norms of justice---Conviction recorded against accused would not be sustainable in circumstances---Appropriate procedure to be adopted was that accused was produced before the court to defend himself on the both charges i.e., wilful absconsion and murder of the deceased---Conviction awarded to accused in absentia being not sustainable, said order was set aside, and matter was remanded to the Special Judge Anti-Terrorism Court for trial of accused afresh.

Arbab Khan's case 2010 SCMR 755 and Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 ref.

Ali Hassan Bugti for Appellant.

Ameer Hamza Mengal, Deputy Prosecutor-General for the State.

Date of hearing: 17th March, 2015.

2015 P Cr. L J 974

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ

MUHAMMAD ISMAIL and another---Petitioners

versus

The STATE---Respondent

Criminal Revision No.25 of 2014, decided on 24th July, 2014.

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

----Preamble, Ss. 2(k)(s)(za), 9(c) & 16---Drugs Act (XXXI of 1976), Ss.23 & 28---Criminal Procedure Code (V of 1898), S.221---Possessing or trafficking narcotics---Recovery of alcohol, beer and acid---Framing of charge---Alcohol, beer and acid, were recovered from the vehicle and FIR under Ss.23 & 28 of the Drugs Act, 1976 was lodged against accused---Application of accused filed under S.221, Cr.P.C. for framing charge under S.16 of Control of Narcotic Substances Act, 1997, having been rejected by the Trial Court---Validity---Recovered liquid, which had been identified as 'Hydrochloride Acid (HCL)', used as chemical regent in laboratory experiments, did not fall within the definitions of "controlled substance", "narcotic drug" and "Psychotropic substance" as provided in S.2(k)(s)(za) of Control of Narcotic Substances Act, 1997---Recovered liquid not falling within the mischief of S.9(c) of Control of Narcotic Substances Act, 1997, nor coming under any definition of the contraband item/substance, order passed by the Trial Court/Special Court, whereby application of accused filed under S.221, Cr.P.C. was rejected, was set aside---Trial Court was directed to alter the charge and to frame the same for an offence punishable under S.16 of Control of Narcotic Substances Act, 1997, thereafter to proceed with the case strictly in accordance with law.

Zahoor Ahmed Mengal for Petitioners.

Abdul Sattar Durrani, Additional Prosecutor-General for the State.

Date of hearing: 26th June, 2014.

2015 P Cr. L J 1163

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

REHMATULLAH---Appellant

versus

The STATE---Respondent

Criminal Appeal No.351 of 2013, decided on 2nd April, 2015.

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

----S. 302(b)----Juvenile Justice System Ordinance (XXII of 2002), Preamble---Qatl-i-amd---Appreciation of evidence---Juvenile accused---Confidence inspiring statements of complainant and eye-witnesses---Motive proved---No probability of false implication---Defence admitted unnatural death of deceased but pleaded false implication---Medical evidence confirmed unnatural cause of death of deceased by bullet injuries on chest---Complainant during his examination accurately stated contents of FIR and remained firm---Defence failed to cause dent in statement of complainant during cross-examination---Statements of independent eye-witnesses of occurrence were in line with statement of complainant---Defence failed to bring on record any ill-will or element of false implication on part of eye-witnesses or to show its relation with complainant---Statement of eye-witness could not be ruled out of consideration being independent witness fully supporting prosecution story---Statements of eye-witnesses were also confidence inspiring as the same had correctly narrated details of occurrence---Defence failed to point out mala fide or ulterior motive on part of eye-witnesses for falsely implicating accused---Disclosure memo. leading to discovery of new facts which were not known earlier was also admissible and further strengthened prosecution case---Prosecution had successfully proved motive of occurrence by showing conduct of parties due to business rivalry between them---Evidence of three eye-witnesses, medical evidence coupled with circumstantial evidence, disclosure by accused, recovery of crime empty of pistol and surrendering of accused to police right after commission of crime had proved beyond any shadow of doubt that deceased was murdered by accused due to business rivalry---Prosecution evidence was confidence inspiring and the same was not suffering from any contradictions or infirmity---Normal penalty under Cl. (b) of S. 302, P.P.C., was death sentence, but accused was awarded sentence for imprisonment for life being juvenile---Trial Court, after properly appreciating available evidence rightly awarded conviction to accused, which did not warrant any interference---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Plea of false implication---Scope---Substitution on plea of false implication was rare phenomenon---Complainant whose son had been murdered could not be believed to have substituted actual culprits with the accused---Parties were known to each other previously and question of mistaken identity of real culprits did not arise---Accused was righty convicted in such circumstances---Appeal was dismissed accordingly.

Allah Ditta v. The State PLD 2002 SC 52 and Haji Ali Shah v. The State 2001 PCr.LJ 1320 rel.

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

----S. 302(b)--- Juvenile Justice System Ordinance (XXII of 2002), S. 7---Qatl-i-amd---Heinous offences---Juvenile accused---Quantum of sentence---Age of convict, consideration of---Principles---Normal penalty under Cl. (b) of S. 302, P.P.C., was death sentence, but accused was awarded sentence for imprisonment for life being juvenile---Age factor could only be seen in case of minor offences, but case of heinous offence of murder could not be treated at par with minor offences---Age, type and seriousness of offences and past record of criminal activities of accused at time of his conviction was a relevant factor, which should also have been adhered to Juvenile Justice System, which was meant to treat a child accused with care offering him chance to reform and settle into mainstream of society, but the same could not be allowed to be used as ploy to dupe course of justice while conducting trial and treatment of heinous offences.

Adnan Kasi for Appellant.

Yahya Khan, Deputy Prosecutor-General for the State.

Date of hearing: 3rd March, 2015.

2015 P Cr. L J 1269

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandohail, JJ

ABDUL ALEEM and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeal No.194 and Criminal Revision Petition No. 34 of 2014, decided on 27th April, 2015.

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

----Ss. 302, 460, 147, 148, 149 & 34---Qatl-i-amd, lurking house-trespass or house-breaking by night, rioting, unlawful assembly and common intention---Appreciation of evidence---Complainant alleged that accused persons after scaling wall of their house started firing and as a result his nephew died at the spot while the other nephew suffered injury---Trial court convicted accused persons under S. 460, P.P.C. and exonerated him from other charges---Accused persons contended that FIR had been lodged after inordinate delay of eleven hours, no role of firing had been ascribed to him for causing any injuries to deceased and S. 460, P.P.C. was not borne out from prosecution evidence---Validity---Incident was an un-witnessed occurrence---Prosecution witnesses, till time of medical examination, had neither nominated the accused persons nor disclosed about happening of incident in the manner as alleged by prosecution nor disclosed about his own injury allegedly caused by accused persons---No recovery of any empties of weapon from place of occurrence was mentioned---Having information about commission of cognizable offences, no FIR was registered--­-Complainant failed to explain delay of eleven hours in lodging of FIR---Delay of eleven hours in lodging of FIR provided sufficient time for deliberation and consultation---Failure to explain the delay made dent in case of prosecution and false implication of accused persons could not be ruled out---Prosecution witnesses were not worthy of credence as they were either not present at place of occurrence or had not implicated appellants and failed to disclose happening of incident---Empties and recovered weapons were not sent to Forensic Sciences Laboratory for matching to ascertain as to whether the empties recovered from place of incident were fired from those weapons or otherwise---Investigating Officer did not appear for examination as witness---Most important witnesses, who had been found at the place occurrence had taken place, were not produced, for which adverse inference under Art. 129 of Qanun-e-Shahadat, 1984 had to be taken i.e. had the said witnesses been examined in court, their evidence would have been unfavourable to prosecution---None of prosecution witnesses ascribed any role of firing to accused persons in respect of causing firearm injury to the deceased, for which they were exonerated by trial court---Circumstances arising out of S. 460, P.P.C. were not put to accused persons during their statements under S. 342, Cr.P.C., and such circumstances could not be used against them---Conviction and sentence awarded to accused persons under S. 460, P.P.C. by Trial Court was unwarranted and not sustainable as the same were not borne out from evidence on record---Conviction resulted from misreading and non-reading of evidence and incorrect appraisal thereof---No judicial certainty and circumstantial guarantee of participation of accused persons in occurrence existed to uphold their conviction---Impugned judgment was set aside and accused persons were acquitted---Criminal appeal was allowed in circumstances, while revision petition dismissed accordingly.

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

----Art. 129----Penal Code (XLV of 1860), Ss.460, 302, 147, 148, 149 & 34---Court may presume existence of certain facts---Failure to produce material witnesses---Presumption---Most important witnesses, who had been found where occurrence had taken place, were not produced, for which adverse inference under Art. 129 of Qanun-e-Shahadat, 1984 had to be taken presuming that had the said witnesses been examined in court, their evidence would have been unfavourable to prosecution.

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

----S. 460---Criminal Procedure Code (V of 1898), S. 342----Power to examine accused---Persons jointly concerned in lurking house-trespass or house-breaking by night punishable for Qatl-i-amd or hurt caused by one of them---Ingredients of S. 460, P.P.C.---Proof---Circumstances arising out of S. 460, P.P.C. were not put to accused persons during their statements under S. 342, Cr.P.C and such circumstances could not be used against them.

Akbar Ali and others v. The State 2008 SCMR 6; Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82; Riaz Ahmed v. The State 2010 SCMR 846 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

Baz Muhammad Kakar for Appellants (in Criminal Appeal No. 194 of 2014).

Miss Sarwat Hina, Additional P.-G. for the State (in Criminal Appeal No.194 of 2014).

Abdul Nasir Kakar for Petitioner (in Criminal Revision Petition No.34 of 2014).

Baz Muhammad Kakar for Respondents Nos.1 to 3 (in Criminal Revision Petition No.34 of 2014).

Miss Sarwat Hina, Additional P.-G. for the State (in Criminal Revision Petition No.34 of 2014).

Date of hearing: 18th March, 2015.

2015 P Cr. L J 1364

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

NABEEL and another---Appellants

versus

The STATE and others---Respondents

Criminal (ATA) Appeal No.318 of 2011 and Criminal Acquittal Appeal No.121 of 2014, decided on 16th April, 2015.

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

----Ss. 302(b), 324, 353 & 34----Anti-Terrorism Act (XXVII of 1997), S. 7 & 25---Criminal Procedure Code (V of 1898), Ss. 407 & 410---Qanun-e-Shahadat (10 of 1984), Arts. 129, Illus (g) & 22---Qatl-i-amd, attempt to commit qatl-i-amd, criminal force to deter public servant from discharge of his duty, common intention and terrorism---Appeal against acquittal/conviction---Appreciation of evidence---Benefit of doubt---Accused persons were alleged to have opened fire on F.C. personnel and escaped and on chasing when the personnel tried to enter the house where accused persons were hiding, accused persons again opened fire resulting in death of one of the personnel and injuries caused to two of them---Trial Court convicted one of the accused persons awarding sentence of imprisonment on multiple charges and acquitting the others---Two incidents took place, first, when accused party opened fire upon patrolling personnel and escaped, and secondly, when personnel attempted to enter the house and accused persons made firing upon them which resulted in death of one personnel and injuries to two---Admittedly F.C. personnel were patrolling in armed condition when first firing was made upon them but they made no counter firing and only chased the accused; said assertion was not natural, believable and rational and Trial Court rightly disbelieved the prosecution story to that extent---No specific role was attributed to accused persons---Incident allegedly took place at dark night, attacked F.C. personnel who did not know the accused nor did they know their names, even no specific role had been assigned by witnesses to accused persons---After arrest of accused, their identification parade was essential to be conducted in view of facts and circumstances of case---In case of absence of identification parade for identity, involvement of convict-accused in commission of offence was doubtful---Witnesses during trial failed to identify accused persons as assailants---Prosecution failed to show that accused persons either belonged to any criminal gang or banned organization or there was any personal enmity or grudge between the accused and personnel attacked---No occasion existed for accused persons to make firing upon said personnel by endangering their lives just for nothing---Prosecution case lacked motive behind occurrence, and false implication of accused could not be ruled out of consideration---Trial Court could convict accused even without any motive but in view of facts of the case, implication of accused in case was highly doubtful---Sufficient arms and ammunition were allegedly recovered from accused persons, but prosecution failed to lodge separate F.I.R. under Arms Ordinance, 1965, nor any evidence was produced showing recovery of arms from any of the accused persons---Arms and ammunition could not be linked with convict-accused---No witness was produced who had seen the incident---Evidence of said two injured personnel was best piece of evidence, but the same was dropped without any reason or justification---Presumption under illus. (g) of Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that examination of said two witnesses would have been unfavourable to prosecution---Prosecution was not bound to produce each and every witness, but if prosecution had failed to produce such witnesses who were star witnesses, and whole story was allegedly witnessed by them, it made prosecution story doubtful---Evidence available on record was not of such character which could be relied upon to convict a person on charges of capital punishment---Trial Court had rightly appreciated facts and circumstances of case to the extent of acquittal of co-accused persons, but had mis-appreciated the same to the extent of convict accused---Prosecution failed to prove charge against all accused persons beyond any shadow of doubt---Any doubt arising in prosecution case must be resolved in favour of accused---Conviction of the accused could not be maintained---Acquittal of co-accused was neither arbitrary nor perverse or contrary to evidence available on record---High Court accepted appeal of accused, set aside conviction order of Trial Court and acquitted the accused from all charges, dismissing appeal against acquittal and upheld acquittal order of co-accused.

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

----Art. 129, Illus. (g)----Penal Code (XLV of 1860), Ss. 302, 324, 352 & 34---Qatl-i-amd, attempt to commit qatl-i-amd assault or criminal force otherwise than on gave provocation and common intention---Examination of star witnesses---Presumption as to absence of examination---Evidence of injured was best piece of evidence, but the same was dropped without any reason or justification---Presumption under illus. (g) of Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that examination of said two witnesses would have been unfavourable to prosecution---Prosecution was not bound to produce each and every witness, but if prosecution had failed to produce such witnesses who were star witnesses, and whole story was allegedly witnessed by them, it made prosecution story doubtful.

Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180 and Khalid and 2 others v. The State 2012 SCMR 327 rel.

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

----Art. 22---Penal Code (XLV of 1860), Ss. 302(b), 324, 353 & 34---Qatl-i-amd, attempt to commit qatl-i-amd assault or criminal force otherwise than on gave provocation and common intention---Identification parade---Incident allegedly took place at dark night, F.C. personnel who were attacked did not know the accused nor did they know their names, even no specific role had been assigned by witnesses to accused persons---After arrest of accused, their identification parade was essential to be conducted in view of facts and circumstances of case---In case of absence of identification parade for identity, involvement of convict-accused in commission of offence was doubtful.

Khalil Ahmed v. The State 2015 MLD 236; Khawar v. The State 2014 YLR 2120 and Iqbal Zada v. State 2014 PCr.LJ 1397 rel.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25---Criminal Procedure Code (V of 1898), Ss. 407 & 410---Qanun-e-Shahadat (10 of 1984), Arts. 129, Illus. (g) & 22---Qatl-i-amd, attempt to commit qatl-i-amd, criminal force to deter public servant from discharge of his duty, common intention and terrorism---Appeal against acquittal/conviction---Appreciation of evidence---Motive---Prosecution failed to show that accused persons either belonged to any criminal gang or banned organization or there was any personal enmity or grudge between the accused and personnel attacked---No occasion existed for accused persons to make firing upon said personnel by endangering their lives just for nothing---Prosecution case lacked motive behind occurrence, and false implication of accused could not be ruled out of consideration---Trial Court could convict accused even without any motive but in view of facts of the case, implication of accused in case was highly doubtful.

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

----S. 417----Appeal against acquittal---Limitation---Appeal against acquittal was filed after lapse of about three and half years without any explanation---Unexplained delay in filing appeal against aquittal could not be condoned.

(f) Criminal trial----

----Benefit of doubt---Any doubt arising in prosecution case must be resolved in favour of accused.

Tahir Ali Baloch for Accused (in Criminal Appeal No. 318 of 2011 and in Criminal Acquittal Appeal No.121 of 2014)

Sultan Mehmood, Special Prosecutor ATA for the State.

Date of hearing: 11th December, 2014.

2015 P Cr. L J 1389

[Balochistan]

Before Muhammad Ejaz Swati and Naeem Akhtar Afghan, JJ

DILMURAD DILJAN alias DILO---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.14 of 2012, decided on 28th April, 2015.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Evidence of prosecution witnesses were based on hearsay; as neither the eye-witnesses of the occurrence had direct knowledge, nor in their presence, the deceased (then injured) made any statement to the Police or Doctor---Purported statement of deceased (then injured) under S.161, Cr.P.C., was recorded by Police Officer, and he produced the same---Nothing was mentioned in the said statement about the presence of Doctor, or any other official of the hospital, or obtaining of fitness certificate regarding condition of the deceased (then injured)--- Doctor neither testified the same nor he disclosed about the condition of the deceased (then injured) at the relevant time and date---Inconsistency existed relating to the time of arrival of the deceased in injured condition to the hospital---Doctor had not supported the purported statement of the deceased (then injured) which in the circumstances of the case was not safe to be relied upon---Act of withholding most natural and material witness of the occurrence, would create an impression that the witness, if produced might not have supported the prosecution---Non-examining of the best evidence, had further made the case of the prosecution doubtful, and benefit of such doubt, was to be extended in favour of accused---Impugned judgment of the Trial Court, was set aside, accused was acquitted of the charge and was released, in circumstances.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 ref.

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

----Art. 46---Criminal Procedure Code (V of 1898), S. 161---Dying declartion---Scope---Examination of witness by Police---Statement of a deceased (then injured) in the form of statement under S.161, Cr.P.C., could be treated as a dying declaration and same was admissible under Art.46 of Qanun-e-Shahadat, 1984---If proved, same could be made a basis for sustaining conviction of accused on capital charge, but to make a basis for conviction, prosecution was required to establish; firstly; that the deceased, while recording his statement as dying declaration, was in full senses and was conscious and alert to surroundings and was able to make a coherent statement; secondly, the dying declaration rang true, and was sound in substance to be relied upon and thirdly, if the Doctor present at the occasion, would give a fitness certificate about the condition of the dying person.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Police Official as witness---Held, it could not be stated as a rule that a Police Officer, could, or could not be a sole witness in criminal case; it always depended upon the facts of a given case---If the testimony of such witness was reliable, trustworthy cogent and duly corroborated by other witnesses, and admissible evidence, then the statement of such a witness could not be discarded only on the ground that he had designation of Police Officer.

Abdul Karim Yousafzai for Appellant.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 7th April, 2015.

2015 P Cr. L J 1482

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

SHAH JAHAN---Appellant

versus

MUHAMMAD NOOR and another---Respondents

Criminal Acquittal Appeal No.145 of 2011, decided on 29th June, 2015.

Penal Code (XLV of 1860)---

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.40---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Initially, due to non-implication of any person in the crime, case was closed---After about 11 months of the occurrence, case was re-opened on application of son of the deceased, after sanction of concerned Judicial Magistrate---Alleged disclosure and pointation memo. of the accused was recorded after about one year of occurrence, wherein facts related to the incident, commission of offence and pointation of place of incident had allegedly been mentioned by accused---Alleged disclosure and pointation of accused, could not be termed to be a fact discovered in consequence of information of accused and in no way fell within the ambit of Art.40 of Qanun-e-Shahadat, 1984---Recovery of Kalashnikov allegedly on the pointation of accused, in absence of non-recovery of empties from the spot, and positive report of Forensic Science Laboratory, had no consequence and could not be regarded as corroborative evidence---Conduct of prosecution witnesses, was quite unnatural as they being sons of the deceased, neither had taken their deceased father to hospital nor to home, nor reported the matter to the Police---Naib Resaldar, as prosecution witness, had negated the testimony of prosecution witnesses---Unnatural conduct of prosecution witnesses, being real sons of the deceased, who remained mum and after 11 months of the incident they came forward and through application, implicated accused in the commission of the offence, was highly doubtful---Besides the unnatural conduct of prosecution witnesses, they during the course of cross-examination, admitted that after the murder of their father and involvement of accused, who was their brother, in the case, 200 acre landed property including an orchard and cattle, left by their deceased father came into their possession---Reasonable possibility of false implication of accused, could not be excluded---Trial Court after considering the evidence on record by means of well reasoned judgment extended benefit of doubt in favour of accused, which was unexceptionable, warranted no interference by High Court---Acquittal appeal was dismissed, in circumstances.

1992 PCr.LJ 2119 and Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82 ref.

Nemo for Appellant.

Nemo for Respondent No.1.

Miss Sarwat Hina, Addl. Prosecutor-General for the State.

Date of hearing: 22nd April 2015.

2015 P Cr. L J 1490

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

ABDUL HAQUE---Petitioner

versus

MIR AHMED and 6 others---Respondents

Criminal Revision No.78 of 2013, decided on 7th July, 2015.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), Preamble---Prevention of illegal possession of property---Applicability of Cr.P.C.---Scope---Illegal Dispossession Act, 2005, contained no provision to provide a right of appeal or revision to the aggrieved person against interim or final orders passed in the cases filed under said Act---Absence of the provisions to the effect, never meant denial of right of appeal to an aggrieved person under said Act---Section 9 of Illegal Dispossession Act, 2005, was clear enough to extend the provisions of Cr.P.C. to the proceedings held under said Act, which was comprehensive enough to deal with the issue---Absence of specific provision of appeal in the Illegal Dispossession Act, 2005, in no way would affect the right of appeal or revision---Application of Cr.P.C., extended in the cases dealt under Illegal Dispossession Act, 2005, could be pressed when the difficulty would arise due to absence of specific provision---Aggrieved person, had a right of appeal or revision as provided in the Cr.P.C. for redressal of his grievance.

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

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), Ss.435 & 439---Illegal dispossession---Complaint against---Investigation and procedure---Revisional jurisdiction, exercise of---In the present case, no order of conviction or acquittal was passed on the allegation made in the complaint---No charge was framed, and complaint was dismissed before taking cognizance of the offence, and framing of the charge---Only an order for conducting investigation as required under S.5 of Illegal Dispossession Act, 2005 was on record---Trial Court concluded that the matter between the parties was purely of civil nature, not falling within the ambit of Illegal Dispossession Act, 2005, which resulted in dismissal of complaint---In absence of an order of acquittal or conviction on framing of the charge, revision petition, would be competent on dismissal of complaint, which would decide the maintainability of the petition---High Court, had to look into the legality of the order in exercise of its revisional jurisdiction.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss.435 & 439---Illegal dispossession---Complaint---Revision---Complainant, was aggrieved of not only that he was dispossessed from his property, but the standing crops were also damaged and destroyed---Respondents raised construction on the land in question---Report of investigation submitted by Tehsildar, described existence of the property in the names of several persons, including the name of the complainant---Physical possession at the site as described by the report, was with the respondents, who not only occupied the subject land, but had also constructed houses on the land---Such fact, only described the physical possession with the respondents, but not enough to consider an offence under Illegal Dispossession Act, 2005---To establish criminal liability on the part of the respondents, the complainant, must be specific enough to describe the act as illegal and the extent of involvement of the respondents in the commission thereof---Contents of the complaint, failed to disclose the measurement and area of the property, from which petitioners were dispossessed---Even the measurement of the area, where the alleged construction was raised, nowhere disclosed, nor specified the period when such construction was raised---Mode of dispossession was also not stated---No allegation was levelled to the effect that the respondents were land-grabbers, and with show of force, illegally occupied the land in question---Trial Court properly assessed the available material, and arrived to a decision on the basis of the contents of the complaint, in addition to the investigation report---No case for illegal dispossession, could be made out on the basis of the available material---No illegality or irregularity on the part of the Trial Court had been pointed out, which needed interference by High Court---Petition being meritless, was dismissed, in circumstances.

Mian Bahadar Jan v. State PLD 2009 Pesh. 70; 2006 PCr.LJ 1381 and Habibullah v. State 2009 MLD 1162 ref.

Malook Ahmed Langove for Petitioner.

Asadullah Langove for Amir Hamza Deputy Prosecutor General for Respondents Nos. 1 to 6.

Date of hearing: 20th March, 2015.

2015 P Cr. L J 1502

[Balochistan]

Before Muhammad Ejaz Swati and Shakeel Ahmed Baloch, JJ

ZIA UR REHMAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.158 of 2009, decided on 25th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-D---Constitution of Pakistan, Art.13---Criminal Procedure Code (V of 1898), S.403---Attempt to commit qatl-i-amd, Jaifah---Double jeopardy, doctrine of---Scope---Trial Court, acquitted accused---High Court maintained acquittal of the accused and remanded the cases of other accused persons to trial court---Trial Court, on remand of the other accused persons, again tried the acquitted accused and convicted him for the same offence, which was "double jeopardy" as contemplated under S.403, Cr.P.C.---Conviction and sentence awarded to accused was also contrary to Art.13 of the Constitution---Under the doctrine of double jeopardy and principle of 'autrefois acquit and autrefois convict', conviction and sentence of accused could not be sustained which were set aside---Accused being on bail, his bail bond stood discharged, in circumstances.

Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121 ref.

Abdul Kareem Yousafzai for Appellant.

Malik Sultan Mehmood, Special Prosecutor, ATA for the State.

Date of hearing: 30th April, 2015.

2015 P Cr. L J 1509

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Mrs. Syeda Tahira Safdar, JJ

NOORULLAH and others---Petitioners

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Constitutional Petitions Nos. 475,493, 496, 513, 518 of 2014, decided on 25th May, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Justice of Peace---Powers and jurisdiction of---Nature---Order of Justice of Peace was not assailable under S.561-A, Cr.P.C.---Powers of Justice of Peace, were merely administrative and ministerial in nature and character---Any order passed under Ss.22-A & 22-B, Cr.P.C., did not involve any adjudication, which could be termed as judicial in nature and character---Any order passed by ex-officio Justice of Peace, would not be assailable under S.561-A, Cr.P.C., and being administrative/executive in nature, could only be assailed under Art.199 of the Constitution.

Khizar Hayat and others v. Inspector General of Police Punjab and others PLD 2005 Lah. 470; Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Nazir Ahmed and others v Muhammad Shafi and another PLD 1980 SC 65; Bahadur and another v The State and another PLD 1985 SC 62 and Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753 ref.

Syed Ayaz Zahoor and Masoom Khan Kakar for Petitioner (in C.P. No.475 of 2014).

Nauroz Khan Mengal (absent) for Petitioner (in C.P. No.493 of 2014).

Abdul Ghani Mashwani (absent) for Petitioner (in C.P. No.496 of 2014).

Sohail Ahmed Rajpoot (absent) for Petitioner (in C.P. No.518 of 2014).

Saleem Lashari for Petitioner (in C.P. No.513 of 2014).

Muhammad Aslam Chishti, Senior Advocate Supreme Court Amicus Curie.

Zahoor Ahmed Baloch, Additional Advocate General for the State.

Date of hearing: 4th May, 2015.

2015 P Cr. L J 1767

[Balochistan]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

GHULAM SARWAR---Appellant

Versus

The STATE---Respondent

Criminal (CNS) Appeal No.87 of 2015, decided on 15th August, 2015.

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

----Ss. 9(c) 8, 7, 6 & 48----Customs Act (IV of 1969), S. 171---Appeal against conviction---Possession of narcotics drugs, import and export of narcotics drugs, trafficking or financing trafficking of narcotics drugs, etc.---Appreciation of evidence---Benefit of doubt---When seizure or arrest is made, reason in writing to be given---Seizure memo of recovered contrabands not prepared at spot---Effect---Non-sealing of samples of contrabands at spot---Effect---Chemical Examiner's report-- Evidentiary value---Ownership of vehicle used in transportation of contraband---Requirement of proof---Charas and opium were alleged to have been recovered from accused---Trial court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment and pay fine---Accused took plea that he had no knowledge of contrabands concealed in body of vehicle---Witnesses had made dishonest improvements in their dispositions and same were contradictory---Fard-e-bayan or notice of seizure issued under S.171 of Customs Act, 1969 had been typed, whereas prosecution witness stated that he had written the same by hand at the spot, which indicated that case property was not seized at the spot---Prosecution witness had admitted that samples of recovered contrabands had not been prepared at the spot---Neither seizure memo nor samples had been prepared at spot, which was illegal, and for which no explanation was given by complainant---Non-sealing of samples of recovered contrabands soon after its recovery had created serious doubt in prosecution case---No reliance could be placed on Chemical Examiner's report, which, in given circumstances, had lost its evidentiary value---Prosecution had failed to prove ownership of vehicle used in transportation of recovered contrabands, as no registration documents regarding said vehicle had been produced---Nothing was available on record to show whether said vehicle belonged to accused or he was driving the same---Prosecution had failed to connect accused neither with vehicle nor with recovered contrabands--- Recovery of recovered contrabands was not effected on pointation of accused---Prosecution failed to prove conscious possession or knowledge of recovered contrabands---Trial court could not properly appreciate defence plea---Entire case of prosecution was defective, doubtful and full of contradictions---Impugned judgment suffered from wrong appreciation, non-reading and misreading of evidence---High Court, extending benefit of doubt, acquitted accused---Appeal was allowed in circumstances.

Khan Bacha v. The State PLD 2006 Kar. 698 rel.

(b) Criminal trial---

----Benefit of doubt---Whenever doubt is created benefit of same has to be given to accused not as matter of grace but as matter of right.

Tahir Hussain Khan for Appellant.

Syed Ikhlaq Shah,Standing Counsel for the State.

Date of hearing: 5th August, 2015.

2015 P Cr. L J 1777

[Balochistan]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

SYED BIBI---Petitioner

Versus

NAIB TEHSILDAR LEVIES BOSTAN and 10 others---Respondents

Criminal Miscellaneous Quashment No.42 of 2010, decided on 20th August, 2015.

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

----Ss. 22-A & 561-A----Penal Code (XLV of 1860), Ss. 302, 324, 353 & 186--Constitution of Pakistan, Art.199---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant in discharge of his duty, obstructing public servant in discharge of public functions---Registration of second FIR---Principles---Powers of Ex-officio Justice of Peace---Inherent powers of High Court---Application under S.561-A, Cr.P.C. converted into constitutional petition----Scope---Petitioner filed application under S.22-A, Cr.P.C. for registration of second FIR against respondents-police officials who had been alleged to have killed petitioner's son in police encounter, which was dismissed by Ex-officio Justice of Peace---Respondents had already registered FIR against co-accused along with deceased for firing at them during police encounter---Contention raised by petitioner was that respondents had killed her son by torturing him---Held, contradictions existed in and between statements of prosecution witnesses as to manner and time of death of deceased---Respondents, having fired at deceased, had alleged to have taken him to hospital, but no medico legal certificate had been produced---Prosecution could not explain multiple injuries caused on body of deceased while he was in custody of respondents (Police Officials)---Unexplained wound on skull and temporal/occipital region of deceased caused by blunt means had necessitated registration of second FIR as per version of petitioner and then investigation thereunder---Two distinct and opposite versions had come on record---Manner of occurrence, place of occurrence and other details were not only different, but same were also opposite to each other---Interest of justice demanded that separate FIR on basis of petitioner's application should have been recorded and investigated upon---After two versions were placed before court, who then had to decide and adjudicate upon as to which of the two versions was wholly or partly correct and which of accused persons were liable to be convicted---High Court, setting aside impugned order of Ex-officio Justice of Peace, directed respondents to register second FIR as per version of petitioner and suspended trial being conducted under first FIR and further directed the same to be conducted simultaneously with trial under second FIR after completion of investigation---Constitutional petition was accepted accordingly.

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

----S. 22-A----Registration of second FIR---Principles---If it is found that counter version given by party has disclosed distinct and separate cognizable offence, another FIR will have to be registered and shall be investigated upon.

Muhammad Azam v. Inspector-General of Police, PLD 2008 Lah. 103 and Hamayun Khan v. Muhammad Ayub Khan 1999 PCr.LJ 1706 rel.

Asghar Khan Panezai for Petitiioner.

Muhammad Qahir Shah for Respondent Nos. 1 to 9.

Atiq Ahmed Khan, Deputy Prosecutor General.

Muhammad Aslam Chishti Amicus Curiae.

Date of hearing: 21st April, 2015.

2015 P Cr. L J 1

[Special Court, Islamabad]

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

FEDERAL GOVERNMENT OF PAKISTAN---Complainant

Versus

GENERAL (R) PERVEZ MUSHARRAF---Accused

Complaint No.1 of 2013 and Criminal Miscellaneous Application No.26 of 2014, decided on 21st November, 2014.

Per Faisal Arab, J; Syeda Tahira Safdar, J agreeing; Muhammad Yawar Ali, J dissenting. [Majority view]

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

----S. 107---"Abetment"---Definition and scope---Distinct categories of acts falling within the definition of "abetment"---Three distinct acts fell within the definition of "abetment" as provided under S. 107, P.P.C.---First such act was the act of instigation by one to another to do an illegal thing; second was the act of engaging with one or more persons in any conspiracy which resulted in taking place of an illegal omission or commission and third was the act when a person either intentionally did anything or illegally omitted to do something that resulted in facilitating someone in doing an illegal act---Explanation 2 to S. 107, P.P.C. explained that where one did anything, either prior to or at the time of commission of an offence whereby he facilitated the other in the commission of an offence then the acts of former would also amount to committing the offence---To fall in the third category of definition of "abetment" it was not necessary that the aider or abettor had committed such an act that was identical to the acts committed by the principal offender; it would be sufficient to describe a person as an aider or abettor if his act had facilitated the principal offender for committing any offence---Any kind of act of a person, intended to facilitate another to commit an offence, would fall within the third category of the definition of "abetment".

(b) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Criminal Law Amendment (Special Courts) Act (XVII of 1976), S. 6(1)(g)---Constitution of Pakistan, Art. 6---Penal Code (XLV of 1860), S. 107---Trial for High treason---Proclamation of State of Emergency, putting of Constitution in abeyance, and removal of Judges of the Superior Courts by the accused (the then President of Pakistan and Chief of the Army Staff)---Aiders and abettors of such actions---Scope---Plea of accused that Governors of all four Provinces, Chairman Joint Chief of Staff Committee, Chiefs of the Armed Forces and Vice-Chief of Army Staff, Corps Commanders of the Pakistan Army, also participated in the decision making process which culminated in the Proclamation of State of Emergency; that the then members of the Cabinet and National Assembly endorsed the Proclamation of Emergency and passed a resolution in its favour; that all said officials were abettors of the alleged offence and should be joined as co-accused in the present trial for High treason---Validity---Active complicity i.e. participation in the commission of a crime was an essential ingredient of "abetment" as defined in S. 107, P.P.C., which made a person accessory to a crime---Mere endorsement was not active complicity in the commission of a crime to make a person an accessory for the crime---Governors of the four Provinces at that time, the then Chairman Joint Chief of Staff Committee, the then Chiefs of the Armed Forces, the then Vice-Chief of Army Staff and the then Corps Commanders of the Army though at the relevant time held responsible positions and were serving the nation by playing their assigned roles, but except for engaging in a briefing, nothing else was attributed to them---Record of the present trial showed that none of the said officials had any constitutional role to play in the imposition of Emergency in any manner--- Mere endorsement of the acts of accused by members of the Cabinet and National Assembly could not be treated as an act of abetment--- At best those who endorsed the actions of accused without contributing towards commission of the offence, could be regarded as 'accessory after the fact'--- Plea of accused for implicating said officials in the present trial was not sustainable--- Application was disposed of accordingly.

(c) Criminal trial---

----Investigation--- Transparency--- Selective or inconclusive investigation---Necessary for court to interfere---Choice as to which of the accused was to be tried, did not lie with the officers investigating a crime---Where selective investigation was allowed to be made the basis of a criminal trial, it would be against the public interest---Ultimate decision of a Court, whichever way it might go, would lose its credibility in the public eye if a trial proceeded on the basis of selection of the accused by the investigator---Though the courts were not to interfere with the manner in which investigation was carried out, but when selective or inconclusive investigation was pointed out to a Court, it became necessary for it to interfere to correct the wrong---Criminal investigation should not leave an impression that it was intended to find incriminating evidence only against a particular person or had deliberately excluded others who might be involved in the commission of the crime---Only such investigation would be looked upon as transparent which did not have any semblance of partiality and was conducted purely to identify involvement of all persons who may have been involved in the commission of the reported offence.

(d) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Criminal Law Amendment (Special Courts) Act (XVII of 1976), Ss.5(1), 5(3)(a) & 6(1)(g)---Constitution of Pakistan, Art. 6---Penal Code (XLV of 1860), S. 107---Trial for High treason---Proclamation of State of Emergency, putting of Constitution in abeyance, and removal of Judges of the Superior Courts by the accused (the then President of Pakistan and Chief of the Army Staff)---Aiders and abettors of such actions---Prime Minister, Federal Law Minister and purported Chief Justice of Pakistan---Joinder in the proceedings for High treason---Prime Minister was leader of the House in the National Assembly, and when Proclamation of Emergency was declared, he was empowered under the Constitution to advise the President to impose emergency---Even if the then Prime Minister had not advised the accused to impose emergency, then certainly his powers were being usurped when Emergency was declared by the accused---Prime Minister however displayed no aversion to such usurpation of his power---On the contrary Prime Minister facilitated the change intended to be brought about under the Provisional Constitution Order, 2007, along with the then Law Minister who surely knew the constitutional and legal requirements of an executive action---Law Minister was supposed to be conscious of the legal consequences which flowed from discharge of his responsibilities but the then Law Minister and the then Prime Minister instantly indulged themselves in the process of removal and appointment of Judges of the Superior Courts---Removal and appointment of all the Superior Courts Judges was undertaken by the then Federal Law Minister, who used to initiate summary containing proposal to the Prime Minister who then with his advice forwarded it to the President---Once the said summary was approved by the President only then the notifications were issued---After Proclamation of Emergency within a span of few hours a new purported Chief Justice of Pakistan was nominated---Keeping the sequence of events in mind, the only logical conclusion which could be drawn was that the then new purported Chief Justice of Pakistan would not have been appointed to said post if he was not taken on board prior to the issuance of the Provisional Constitution Order, 2007---Object and the purpose with which the Proclamation of Emergency, the Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 were issued, was realized with the replacement of the then serving Chief Justice of Pakistan---All steps taken by the then Prime Minister and the then Federal Law Minister in the process of removal and appointment of the Judges of the superior judiciary were to be regarded as an integrated whole constituting one offence---Joinder of the then Prime Minister, the then Federal Law Minister and the then purported Chief Justice of Pakistan in the present trial was necessary to secure the ends of justice---Special Court directed the Federal Government to submit amended or additional statement as well as Statement of Formal Charges in terms of Ss. 5(1) & 5(3) (a) of Criminal Law Amendment (Special Court) Act, 1976 against the then Prime Minister, the then Federal Law Minister and the then purported Chief Justice of Pakistan--- Application was partly allowed accordingly.

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

----S. 351---Power to order arrest of accused not present before court--- Scope--- Section 351, Cr.P.C., though empowered a court to get any person present in court arrested without issuance of warrants but it did not mean that there was bar on the courts to summon any person who was not before it---When the material before the court was sufficient to connect the accused with the commission of the crime, cognizance of which had already been taken, then even if such accused was not present in Court, he could be ordered to be arrested.

Per Muhammad Yawar Ali, J; dissenting with Faisal Arab, J. [Minority view]

(f) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Criminal Law Amendment (Special Courts) Act (XVII of 1976), S. 6(1)(g)---Constitution of Pakistan, Art. 6---Penal Code (XLV of 1860), S. 107---Trial for high treason---Proclamation of State of Emergency, putting of Constitution in abeyance, and removal of Judges of the Superior Courts by the accused (the then President of Pakistan and Chief of the Army Staff)---Aiders and abettors of such actions---Scope---Plea of accused that he issued the Proclamation of Emergency on 3-11-2007 on advice of the then Prime Minister and after consulting the Governors of all four Provinces, Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army; that the National Assembly endorsed and affirmed the Proclamation of Emergency and Provisional Constitutional Order,2007; that all such officials and persons ought to be treated as aiders and abettors for the alleged offence and should be arraigned as accused in the present trial---Validity---Bare reading of the Proclamation of Emergency dated 3-11-2007 would show that it had been signed by the accused in his capacity as Chief of Army Staff and not as President of Pakistan---Accused after imposing Emergency addressed the nation wherein he stated that after reviewing the situation and consulting with the members of the Army, Government, Politicians and friends both within the country and abroad, he himself took the decision to impose Emergency---One of the Provincial Governors at that time took the stance that he was not consulted and that Emergency was imposed by the accused on his own volition---No defence witness had appeared so far in support of the accused either to establish that the accused was innocent or to make it manifest that there were other aiders and abettors---Accused had failed to point out either from the documents which were on the record or from the evidence which had been adduced that specific, clear and unequivocal advice was given to him in terms of Art. 48 of the Constitution and he acted upon the same in his capacity as President of Pakistan---No doubt after the Emergency was imposed it was accepted whole heartedly by the then Prime Minister, Cabinet Members, Members of the Assembly, senior Bureaucrats and those Judges of the Superior Courts who opted to take a fresh oath, but at present stage, it could not be concluded that it was an offence with a continuing cause of action meaning thereby that all those persons who acted upon, accepted, ratified and subsequently took concrete steps for the implementation of the Proclamation of Emergency and other steps taken in pursuance of the same ought to be treated as aiders and abettors--- Plea of accused for implicating said officials and persons in the present trial was not sustainable---Application was dismissed accordingly. [Minority view]

Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879 ref.

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

----S. 204---Penal Code (XLV of 1860), S. 107---Private complaint---Abetment---Summoning of aiders and abettors of offence to face trial---Scope---No person could be summoned to face trial in a complaint unless requisite conditions under S. 204 Cr.P.C. were fulfilled---Only in the presence of sufficient grounds and satisfaction of the Court ascertained from the facts placed before it and the evidence which had come on the record could other persons be summoned and arrayed as aiders and abettors. [Minority view]

Imtiaz Rubbani alias Billu v. The State and another PLD 2008 Lah. 441 and Mirza Muhammad Abbas v. The State PLD 1964 Lah. 7 rel.

Punjab National Bank and others v. Surendra Prasad Sinha 1994 PSC (Crl.) 768 ref.

Muhammad Akram Sheikh and Naseer-ud-Din Khan Nayyar assisted by Dr. Tariq Hassan, Sardar Asmatullah, Ch. Muhammad Ikram, Tayyab Jafri, Ishtiaq Ibrahim, Barrister Sherjeel Adnan Sheikh, Barrister Natalya Kamal, Barrister Sajeel Sheryar, Ch. Hasan Murtaza Mann, Faraz Raza, Mian Moazzam Habib and Haider Imtiaz for the Complainant.

Dr. Muhammad Farogh Naseem assisted by Shaukat Hayat, Obaid-ur-Rehman Khan, Irfan-A-Memon and Ch. Faisal Hussain for the Accused.

Dates of hearing: 14th, 15th, 29th and 30th October, 2014.

2015 P Cr. L J 134

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

SHAUKAT AZIZ and another---Appellants

Versus

ANSAR ALI and another---Respondents

Criminal Appeal No. 7 of 2013, decided on 18th April, 2014.

(On appeal from the judgment of the Shariat Court dated 17-12-2012 in Criminal Revision Petition No. 210 of 2012)

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

----S. 497(1), Proviso 4th--- Bail, grant of--- Ground of statutory delay---Principles---Petitioner not accused of offence punishable with death, had been detained for a continuous period exceeding two years; and trial had not concluded, could be released on bail; if such delay in the trial of accused, had not been occasioned by an act or omission of accused; or any other person, acted on his behalf---If accused was a convicted offender for an offence punishable with death or imprisonment for life, and was a hardened, desperate and dangerous criminal; or was accused of an act of terrorism, was not entitled to get concession of bail on ground of statutory delay in conclusion of the trial---Element of hardened, desperate and dangerous criminal, could be ascertained from the previous record of accused, or by manner of occurrence committed by him; and the allegations levelled against him in the F.I.R.---Factors to be considered for determination of an accused as desparate and dangerous criminal were---Previous record of accused, which could include his earlier prosecution; nature of accusation and conduct of accused at the time of alleged occurrence, which had been committed in a heinous manner; element of brutality indicated that accused were hardened, desperate and dangerous criminal; and such act of accused amounted to terrorism; and such act of accused created a sense of fear or insecurity among the public at large.

Muhammad Arif Khan v. Zahir Hussain and another 2009 SCR 484; Sher Ali alias Sheri v. The State 1998 SCMR 190; Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Omair Ahmed Siddiqui v. State 1996 PCr.LJ 22 and Subaedar Muhammad Azam v. Imran Hussain alias Mani and others Criminal Appeal No.48 of 2011, decided on 21-12-2013 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Qatl-i-amd, rioting, common object---Bail, grant of---Occurrence took place due to enmity and motive had been established by the prosecution---Occurrence, having not occurred at a public place, element of sense of fear or insecurity amongst the public, did not arise---Allegation that accused was armed with .12 bore gun, and fired on the chest of the deceased, also did not show the element of any brutality---Element of pre-requisite to ascertain whether a person was hardened, desperate and dangerous criminal, were missing in the present case---Mere allegation that accused was involved in a heinous offence, would not disentitle him to bail on the statutory ground---Trial could not be concluded due to the delay occasioned on the part of the prosecution---No allegation was on record against accused that he misused the concession of bail---Trial was already in progress, and the prosecution had examined 15 witnesses, out of 26 cited in challan---In absence of any infirmity, or illegality in the impugned order, passed by Shariat Court after due application of judicial mind and statutory backing, warranted no interference by High Court---Appeal against impugned order, was dismissed by Supreme Court in circumstances.

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

----S. 497---Bail, grant of---Principles---Court was supposed to make a tentative assessment of evidence, and the other material brought on the record and not to go into the deeper appreciation of evidence, and other record made available---Court was to confine itself within the parameters determined by law; only to look into the material brought on the record in the form of F.I.R., the statement recorded under S.161, Cr.P.C.; and the defence version---Where trial was not concluded in the specific period and accused was not responsible for such delay court was obliged to grant bail---Accused who was previously convicted for an offence of death or imprisonment for life and was hardened, desperate and dangerous criminal, would not be released on bail despite the fact that the trial was not concluded within the statutory period---Court must exercise its discretionary powers in a judicial manner.

Khalid Rasheed Chaudhary, Advocate for Appellants.

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

Kamran Tariq, Advocate for the Accused-Respondent.

Date of hearing: 26th March, 2014.

2015 P Cr. L J 1790

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

TABREZ IQBAL---Appellant

Versus

SUGHRA BEGUM and 2 others---Respondents

Criminal Appeal No.45 of 2013, decided on 9th February, 2015.

(On appeal from the order of the Shariat Court dated 14-10-2013 in Revision Petitions Nos.94 and 102 of 2013)

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 497(5)---Penal Code (XLV of 1860), Ss.302, 34 & 109---Qatl-i-amd, common intention, abetment--- Bail, grant/cancellation of---Principles---Appeal against order passed by Shariat Court, whereby bail was granted to accused persons---Co-accused who was implicated in the case on the statement of accused had stated before the Magistrate that he abetted the accused in destroying the evidence by washing the blood stained clothes---Whether statement of accused, could be used against other co-accused was premature to Judge---Question, whether accused shared the common intention with other co-accused, could not be determined on the basis of the evidence available on record, as the deeper appreciation of evidence was not warranted under the law, while dealing with the bail application---Reasons assigned by the Shariat Court while extending the concession of bail to accused persons, were convincing which did not warrant any interference by Supreme Court---Shariat Court had exercised its discretion in a judicious manner---Challan had already been presented in the court of competent jurisdiction---Principles for grant of bail and cancellation of the same were quite different---Once bail had been granted, same could not be cancelled, unless it was found that the bail granting order was patently illegal, erroneous, factually incorrect; and had resulted into miscarriage of justice---Accused persons, were no more required for further investigation; it would be fruitless to send accused persons behind the bars---Shariat Court had passed impugned order after attending all the questions involved in the case---In absence of any illegality in the impugned judgment passed by the Shariat Court, appeal was rejected.

Azmatullah v. The State 2012 PCr.LJ 1973 rel.

Mukhtar Hussain and another's case 2005 SCR 29 ref.

Kamran Tariq, Advocate for the Complainant.

Raja Inamullah Khan, Advocate for the Respondents.

Sardar Mansoor Pervaiz Khan, Advocate-General for the State.

Date of hearing: 26th January, 2015.

2015 P Cr. L J 1812

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

LIAQUAT HUSSAIN---Petitioner

Versus

The STATE through Advocate-General of Azad Jammu and Kashmir, Muzaffarbad and another---Respondents

Criminal Revision No.7 of 2014, decided on 31st October, 2014.

(On Revision from the judgment of the Shariat Court dated 27-8-2014 in Criminal Revision No. 115 of 2014)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Scope---FIR, in the case was lodged after considerable delay of five hours---Explanation offered by the prosecution for such delay was not convincing---Delay in such like situation was fatal for the prosecution---Nothing had been brought on the record regarding presence of the complainant at the place of occurrence at the relevant time, which made the case one of further inquiry; and could be brought under the purview of S.497(2), Cr.P.C.---Grounds of further inquiry, though depended upon the peculiar facts of each case, but the court had ample powers, even to refuse the bail application in the offences, which did not fall under the prohibitory clause of S.497, Cr.P.C.---Such was not an absolute rule that the bail in non-bailable offences could not be granted to an accused---If from the tentative assessment of the material brought on record, it appeared that there were reasonable grounds for believing that accused had committed a non-bailable offence, but the sufficient grounds for further inquiry into his guilt appeared, then the court could release such accused on bail---In a case falling under the prohibitory clause, the court after tentative assessment of the evidence, if would come to the conclusion that prima facie some doubts were arising into the guilt of accused the court was empowered to exercise its discretion in favour of accused and could release him on bail---Doubt, if any arising in the case must be extended in favour of accused, even at bail stage---Enmity between the parties, being also admitted, possibility could not be ruled out regarding false implication of accused--- When an accused would become entitled as of right to bail under S. 497(2), Cr.P.C., bail could not be withheld on the ground of practice--- Accused was behind the bars for more than six months, but there was no progress in the trial---Fair and speedy trial, was one of the fundamental rights of accused---No moral or legal compulsion existed to keep accused behind the bars for an indefinite period, which would amount to punishment without trial---Accused was previously non-convict---Investigation had been completed, and challan had already been presented in the court of competent jurisdiction---Accused, was no more required for further investigation---Deeper scrutiny of evidence, was not warranted under law at the bail stage---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muhammad Arif v. Babar and another Criminal Appeal No.76 of 2012 ref.

Raja Khalid Mehmood Khan, Advocate for Petitioner.

Imtiaz Hussain Raja, Advocate for the Complainant.

Sardar Mansoor Pervaiz Khan, Advocate-General for the State.

Date of hearing: 28th October, 2014.