PCRLJ 2016 Judgments

2016 P Cr. L J 337

[Federal Shariat Court]

Before Riaz Ahmad Khan, C.J. and Dr. Fida Muhammad Khan, J

MUKAMIL SHAH and others---Appellants

Versus

SAMI ULLAH and others---Respondents

Criminal Appeals Nos. 9/P, 51/I of 2012 and 1/P of 2013, decided on 8th May, 2015.

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

----S. 17(4)--- Criminal Procedure Code (V of 1898), S. 410---Haraabah---Accused fugitive from law---Incompetent appeal---Scope---Female accused was on bail in a case pending against her along with two other accused persons before the Trial Court---While said female accused was travelling in her car three persons fired at her, and as a result she received injury on her right foot---Criminal case was registered regarding said incident---Two days after the incident, impugned order, whereby she along with other two accused persons, were convicted was passed by the Trial Court---Counsel for the complainant, raised preliminary objection that appeal was incompetent and convict/appellant was required to surrender before the court; and if she was injured in attack, court could suspend her sentence under S.426, Cr.P.C.; and that without surrendering before the court or jail authorities, appellant had become fugitive from law and could not file appeal---Counsel for the appellant had submitted that she had threats to her life, and she was not in a position to appear before the court; that as she had executed a power of attorney in his favour, appeal was competent---Validity---Under provisions of S. 410, Cr.P.C., only convicted persons could file appeal---Convict if on bail, had to surrender before the court---If convicted person would not surrender before that court, appeal could not be filed---Appeal though had been admitted, but counsel for accused/convict had concealed the facts from the court that convict/appellant was neither in jail nor before the court---Court, as such, could not take that fact into consideration; and in ordinary manner admitted appeal for regular hearing as it was against conviction---Order passed by the court was due to concealment of facts; and said order would not make appeal maintainable---Incumbent upon the counsel for the appellant that he should have clarified the position before the court that appellant was not in a position to appear before the court; and that appellant was neither in jail nor present before the court---Appeal, as such was not filed by convict/appellant---Once appeal was admitted for regular hearing then it could not be dismissed for non-prosecution or disposed of summarily, rather it had to be decided on merits---Said principle was distinguishable and appeal could not be filed by fugitive from law---Mere filing power of attorney, was not sufficient to file appeal on behalf of a convict person---Convicted person must surrender before the authority of the court first---Judgment of the Trial Court must be complied with, and then appeal could be filed---Appeal filed being incompetent, was dismissed, in circumstances.

Aftab Ahmad Khan Sherpao v. The State PLD 2001 Pesh. 80; Awal Khan and another v. The State PLD 1957 (W.P.) Peshawar 75; Muhammad Ashiq Faqir v. The State PLD 1970 SC 177; Ghulam Hussain v. The State 1971 SCMR 35; The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270; Hayat Bakhsh and others v. The State 1982 SCMR 623 and Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 ref.

Aftab Ahmad Sherpao v. The State PLD 2001 Pesh. 80 distinguished.

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

----Ss. 7, 15, 16 & 17(4)---Haraabah---Appreciation of evidence---Haraabah, had been defined in S.15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but punishment for the said offence could be awarded as Hadd under S. 17(4) of said Ordinance---For imposing Hadd, the criteria of evidence had been provided in S. 7 of the Ordinance---Section 16 of the Ordinance had provided that the provisions of S. 7 would apply mutatis mutandis for the proof of Haraabah---Punishment as Hadd, could be awarded only if evidence in accordance with S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was available---Present case did not qualify the test given in said S.7 of Ordinance; and in absence of that evidence Hadd could not be imposed---Under S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the only penalty which could be imposed was death, and not life imprisonment---Since accused had neither pleaded guilty nor required evidence was available, conviction recorded under S.17(4) of the Ordinance, and that of life imprisonment was totally illegal---If evidence provided for imposition of Hadd was not available, accused could be convicted under Tazir---Accused, could be convicted under S.392, P.P.C., read with S. 302/34, P.P.C., as the two offences provided in S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and S.392 read with S.302, P.P.C., were not distinct offences--- Dead body, in the case was recovered from a lonely place after six days of the incident--- Nobody had been charged in the FIR---No evidence was available on record to show as to how complainant party or the Police came to know that accused persons were involved in the case---Recovery of the car and snatching of the same, could not be believed---Nothing was on record to show that Mobile phone actually belonged to the deceased---If said mobile was recovered on the pointation of accused from the place of occurrence, Police was required to associate witnesses from the locality but same had not been done and recovery memos were witnessed by Police Officials---Recovery of Mobile Phone was doubtful and did not connect accused with the alleged offence---Statement of prosecution witness, who was chance witness and belonged to different place, could not be believed after delay of 6/7 days---Dead body had been recovered along with the articles allegedly used for committing the murder---In such a situation belated statement of alleged eye-witness could not be believed---Statement of said alleged eye-witness, was also in contradiction with the medical evidence---If recoveries of motorcar and Mobile phone, were kept aside, there was no motive for the offence, as to why accused persons killed the deceased---Conviction recorded and sentences awarded to two accused persons, was illegal---Same were set aside they both were acquitted of the charges levelled against them and were set free, in circumstances.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC(AJ&K) 27 ref.

Jalal-ud-Din Akbar-e-Azam Khan Gara, Mohy-ud-Din Malik and Ishtiaq Ahmad for Appellants.

Abdul Fayyaz for the Complainant.

Rahim Shah, Assistant A.G., Khyber Pakhtunkhwa for the State.

Date of hearing: 28th April, 2015.

2016 P Cr. L J 853

[Federal Shariat Court]

Before Mrs. Ashraf Jahan, J

MUHAMMAD ESSA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 29/Q of 2011, decided on 11th December, 2015.

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

----Ss. 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Eye-witnesses of the incident, did not implicate accused with the commission of crime, on the pretext that the faces of the dacoits were muffled, and they were unable to identify accused as one of the culprits---"Fard-e-inkeshaf", allegedly made by accused before the Police, was a weak type of evidence, and without any supporting evidence, could not be basis of conviction---When accused made alleged "Fard-e-inkeshaf", and Police party proceeded for the purpose of recovery, had not taken any independent Mashir to witness the recovery of robbed articles; and Police party did not make any efforts to call any respectable of the vicinity to witness the recovery---Nothing was on record that the recovered flour bags had any specific marks of identification; or the complainant and other eye-witnesses of the incident identified such bags to be the same, which were robbed during the dacoity---Nothing was on record that when accused was arrested in the case, there was no mashirnama of his arrest---Neither, the eye-witnesses identified accused to be one of the culprits, nor the recovery of robbed flour had been made from the exclusive possession of accused in presence of independent witness---Prosecution, having failed to prove the charge against accused beyond the shadow of reasonable doubt, accused was entitled to the benefit of doubt---Judgment of the Trial Court, was set aside---Accused who was on bail, his bail bonds were cancelled, and sureties were discharged, in circumstances.

Shabbir Ahmed v. The State 2011 SCMR 1142 and Muhammad Azeem v. The State 2014 MLD 1712 ref.

(b) Criminal trial---

----Conviction in one case as basis for conviction in some other case---Prosecution had to prove its case beyond the shadow of reasonable doubt; and conviction in one case could not be made basis for conviction in some other case---Conviction in some earlier case, could only be made basis of conviction in subsequent crime if the convict was habitual offender.

Naseebullah Kasi for Appellant.

Complainant in person.

Syed Pervaiz Akhtar, DPG Balochistan for the State.

Date of hearing: 12th November, 2015.

2016 P Cr. L J 979

[Federal Shariat Court]

Before Sh. Najam Ul Hasan and Zahoor Ahmed Shahwani, JJ

NASRULLAH---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal PSLA No.1/L of 2014, decided on 9th January, 2015.

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

----Ss.3, 5 & 7---Penal Code (XLV of 1860), Ss. 365-B, 376 & 337-A---Criminal Procedure Code (V of 1898), S. 417---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, causing shajjah, offence of qazf---Appeal against acquittal---Case, was registered against petitioner/accused and his co-accused, with the allegation that they abducted daughter of respondent for committing zina with her---Accused were acquitted of the charge by the Trial Court, extending them benefit of doubt---Petitioner, after acquittal filed complaint against respondents for an offence under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---Respondents were summoned, but Trial Court while dealing with application filed by respondents for their acquittal under S.265-K, Cr.P.C., acquitted respondents, observing that petitioner and his co-accused were acquitted in the case of zina while extending them benefit of doubt; it was not established that the allegation of zina levelled by the respondents were incorrect; that respondents were not liable under offence of qazf---Validity---Most important and essential ingredients for offence of 'Qazf', was bad intention of the person levelling such imputation of zina---To prove offence of qazf, the prosecution must indicate that such imputation was made with the intention to harm the person, or his reputation by imputing such accusation of zina---In the present case, no intention to harm the person, or reputation of petitioner or circumstance indicating such intention by imputing false accusation of zina, was brought on record during trial for the offence of zina---In absence of such evidence indicating such intention to harm the person and reputation of accused/petitioner, as mentioned in S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, was not clearly made out---Trial Court had not stated that the witnesses had given false evidence in respect of commission of zina---Court had also not come to any conclusion that accusation of zina-bil-jabr was false, but accused, were acquitted while extending them benefit of doubt---Acquittal of accused in case of zina, or zina-bil-jabr, would not automatically establish the involvement of the victim for offence of qazf---Trial Court had rightly dismissed complaint, and acquitted respondents, as there was no likelihood of their conviction.

Bakhat Ali and others v. The State 1993 PCr.LJ 1871; Shahid Maqsood Siddiqui v. The State 2002 YLR 2949; Shehzad alias Shadu and others v. The State 2002 SCMR 1009 and Rana Shahbaz Ahmed and others v. The State 2002 SCMR 303 rel.

Rana Safdar Hussain for Petitioner.

Date of hearing: 9th January, 2015.

2016 P Cr. L J 1042

[Federal Shariat Court]

Before Zahoor Ahmed Shahwani, J

ALI KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 11/Q of 2012, decided on 12th March, 2016.

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

----Ss. 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Accused was not named by the complainant in written report, but he was nominated subsequently through supplementary report---Complainant having not disclosed the source/person who unearthed the name of accused, who was allegedly involved in the commission of offence, supplementary report and deposition of complainant to the extent of implication of accused; and his identification in the court stood highly doubtful, and could not be relied upon---Both the witnesses had identified accused in the court as one of the culprits, but deposition of one of the prosecution witnesses, was silent regarding snatching of mobile phone---Identification of accused by the complainant and the eye-witness, in court, could not improve the case of the prosecution, because accused was not known to them earlier, nor any description of accused was mentioned in the written report and under S.161, Cr.P.C., statement---Without conducting the identification parade of accused by witnesses, identification of accused could not be relied upon---No specific role of having pistol with him or snatching money or mobile phone had been attributed to accused---Evidence collected and led by prosecution against accused, was not convincing and trustworthy---Case of prosecution, was highly doubtful, but the Trial Court without proper appreciation of evidence convicted and sentenced accused by impugned order, which was not sustainable---Accused was acquitted of the charge, in circumstances.

Falak Sher v. The State 1995 SCMR 1350 and Muhammad Saleem v. The State 2010 YLR 2115 rel.

(b) Criminal trial---

----Benefit of doubt---When there was single doubt in the mind of the court, which could affect the delivery of justice, the benefit should go to accused and it was not necessary that there should be many circumstances creating a doubt in prudent mind, about the guilt of accused.

Munawar Hussain v. The State 1993 SCMR 785 rel.

Abdullah Khan Kakar for Appellant.

Abdul Latif Kakar, Additional Prosecutor General Balochistan for the State.

Date of hearing: 25th February, 2016.

2016 P Cr. L J 1242

[Federal Shariat Court]

Before Sh. Najam ul Hasan and Mrs. Ashraf Jahan, JJ

HAZRAT JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 15/I of 2015, decided on 7th April, 2016.

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

----Ss. 302(b) & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, haraabah---Appreciation of evidence---Only substantial evidence available in the case against accused was his confessional statement which was subsequently retracted---Court, in such like cases, had to sift the grain from the chaff to ascertain falsehood---Stand of accused in his statement recorded under S.342, Cr.P.C., was that his confessional statement was due to pressure, threat and promise by the Investigating Officer, otherwise he was not the real culprit---Factum of recording of confessional statement being true, was further supported by the evidence of Judicial Magistrate, who in unequivocal terms deposed before the Trial Court that all the legal formalities were fulfilled before recording of confessional statement of accused---Plea of accused of his incorrect identity or false implication, was nothing, but an afterthought, which could not be relied in the facts and circumstances of the case---Intrinsic value of the pieces of circumstantial evidence, collected against accused found support with medical evidence---Complainant, who was father of the deceased, had neither any enmity with accused, nor had any motive to falsely implicate him--- Prosecution had succeeded in establishing the charge of snatching of vehicle and murder of the deceased against accused---Trial Court had rightly convicted accused and sentenced him with imprisonment for life under S.302(b), P.P.C.; and also convicted him under S.392, P.P.C., for seven years' R.I. with fine---Benefit under S.382-B, Cr.P.C., would remain intact, in circumstances.

Faizullah and others v. The State and others 2012 SCMR 524; Maqsud Ahmad alias Sudi v. The State 2012 YLR 1954; Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Muhammad Afzal and 2 others v. The State 2015 YLR 1699 distinguished.

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

----S. 164---Retracted confessional statement---Conviction on the basis of such confessional statement---Scope---Conviction could be recorded on the basis of retracted confessional statement, if it was found confidence inspiring, voluntary and having not been obtained by coercion, inducement or torture---Solitary judicial confession, if made basis for conviction, must be relied upon in toto without any pick and choose.

Muslim Shah v. The State PLD 2005 SC 168; Muhammad Ashraf v. The State 2001 PCr.LJ 412; Emperor v. Lal Bakhsh AIR 1945 Lah. 43; Dadullah v. The State 2015 SCMR 856 and Ayaz Ahmad v. Allah Wasaya and others 2004 SCMR 1808 ref.

Sardar Asad Ullah Khan for Appellant.

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

Date of hearing: 15th March, 2016.

2016 P Cr. L J 284

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

SUFIYAN---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No. 90 of 2015, decided on 21st September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Evidence against accused and his co-accused, was of last seen of the deceased with accused and his co-accused---Prosecution witnesses had seen the deceased with accused and his co-accused in a taxi driven by co-accused, a little while before the occurrence---Role attributed to co-accused, was quite different from the role alleged against accused---Application and attraction of rule of consistency, did not arise, as the role of co-accused, who had already been released on bail, was not identical with role alleged against accused---Trial of the case had commenced---Bail petition was dismissed, in circumstances.

Malik Kifayat-ur-Rehman for Petitioner.

Deputy Advocate-General for the State.

Date of hearing: 21st September, 2015.

2016 P Cr. L J 957

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

HAIDER---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 9 of 2016, decided on 26th January, 2016.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 156(2) & 537---Possessing and trafficking of narcotics---Investigation by normal Police, instead of Anti-Narcotic Force---Return of challan---Normal Police Station chalked FIR, charging accused persons for the offence of S.9(c) of Control of Narcotic Substances Act, 1997---Control of Narcotic Substances Act, 1997, was a special law, which had provided special mechanism for investigation of the occurrence falling under said law---Attitude of normal Police Station, was patently in utter violation of said law---Chalking of FIR by normal Police Station in case falling under Control of Narcotic Substances Act, 1997, neither could be indemnified under S.156(2), Cr.P.C., nor was curable under S.537, Cr.P.C., as said section neither had provided for any indemnification, nor provided for any curing of such action of normal Police Station---Chief Court directed for re-opening of the investigation of the case by Anti-Narcotics Force, treating the FIR already chalked by Anti-Narcotics Force---Trial Court was directed for returning the challan; if same was presented by normal Police.

Saadatullah for Petitioner.

Deputy Advocate-General for the State.

Date of hearing: 26th January, 2016.

2016 P Cr. L J 993

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ZAIB ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 181 of 2015, decided on 25th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), S.302---Qatl-i-amd--- Honour killing---Bail, refusal of---Trial of the case had almost completed; and the Trial Court was about to pass orders on the case,- Bail petition was mainly on the ground of compromise with the legal heirs of deceased---Question before the court was, whether legal heirs of the deceased, could effect compromise with accused, where the accused himself was one of the legal heirs of the deceased---Counsel for accused was afforded full opportunity for presenting any relevant case-law, but he failed---Bail was refused in circumstances.

Muhammad Saleem for Petitioner.

Deputy Advocate-General for the State.

Date of hearing: 25th January, 2016.

2016 P Cr. L J 1051

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

BAKHSH SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.171 of 2015, decided on 13th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406, 409, 420 & 427---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, mischief---Conditional bail granting order by Trial Court---Police, chalked FIR about six months after the taking place of the occurrence---Trial Court directed for release of accused subject to certain conditions, including deposit of Rs.500,000 cash in the account of Trial Court as security---Accused, instead of complying with the conditions of bail granting order of the Trial Court, filed present bail petition contending that, he did not file any petition for grant of bail before the Trial Court on the grounds agitated through present petition---Accused did not exhaust the grounds of bail agitated before the Trial Court---Such trend was bad in the eye of law, which could not be encouraged---Bail petition was rejected---Chief Court observed that accused was free to file a fresh bail petition on the grounds agitated through that petition before the Trial Court, or resort to any other remedy against order of the Trial Court if in the opinion of accused said order was violative of conditional bail granting order.

Irfanullah for Petitioner.

Deputy Advocate-General for the State.

Date of hearing: 13th January, 2016.

2016 P Cr. L J 1112

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Yar Muhammad, JJ

LAL MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 8 of 2012, decided on 5th March, 2015.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Two uncorroborated versions of prosecution witnesses---Impact on the prosecution case---Two prosecution witnesses, were chance witnesses of the occurrence, and their statements had not been corroborated by any other piece of evidence---According to prosecution version, accused had committed the offence by opening fire shots with Kalashnikov, while the Investigating Officer had recovered a five shotgun as weapon of offence; which recovery also was not proved at the trial---Each and every piece of evidence collected by the Investigating Officer, if perused collectively, was full of doubt---Site plan allegedly prepared was not on file---No blood-stained earth was picked from the site, and the empties were not taken in possession---Trial Court; despite observing the defects in the case, failed to give benefit of such defects and doubt to accused, rather used the doubt against the accused resulting in miscarriage of justice---No implicit reliance, could be placed on the ocular evidence produced in the case---Ocular account also suffered with material contradictions---Prosecution had failed to prove its case beyond reasonable doubt against accused---Conviction and sentence awarded to accused by the Trial Court, were set aside, accused was acquitted and was ordered to be released, in circumstances.

(b) Criminal Procedure Code (V of 1908)---

----S. 161---Statement of prosecution witness recorded under S.161, Cr.P.C.---Scope---Statement of a prosecution witness, recorded under S.161, Cr.P.C., was not substantive evidence, which could be used for a limited purpose of contradicting a witness at the trial to prevent him from corrupting his testimony by way of dishonest improvements---Importance of such statement was still there in law---Investigating Officer, would record it just to make out a prima facie case, so that the trial of the case could commence on that basis---Accused had a right to confront a witness with the statement under S.161, Cr.P.C., where he would appear before the court for deposition.

(c) Criminal trial---

----When the Investigating Officer, would record the statement of one witness, and would omit to record the statement of pair witness, such omission would cast negative impact in the prosecution case.

Haji Jamal Khan and Amjad Hussain for Appellant.

Dy. Advocate-General assisted by Malik Haq Nawaz for the State and Complainant respectively.

Date of hearing: 6th November, 2014.

2016 P Cr. L J 1144

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

FAISAL IQBAL and 2 others---Petitioners

Versus

The STATE and another---Respondents

W.P. No. 29 of 2014, decided on 29th March, 2016.

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

----Ss. 561-A, 249-A & 265-K---Quashment of proceedings---Scope---High Court could exercise its jurisdiction under S. 561-A, Cr.P.C. without waiting for an order to be passed by the trial court under S.249-A or 265-K, Cr.P.C. if the facts of the case so warranted so as to prevent abuse of process of court or otherwise to secure the ends of justice---High Court in summary proceedings could not hold that the evidence so collected in the case was true or false when documentary as well as oral evidence against the accused was available---When there was nothing on record that there was no probability of conviction of accused or that continuance of criminal case would amount to abuse of process of court and law---Constitutional petition was dismissed in circumstances.

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

----Ss. 561-A, 249-A & 265-K--- Quashment of proceedings---Conditions---Criminal proceedings could be quashed when the agency/police who registered the case had no jurisdiction to register the same; when no offence had been made out; when case of civil nature had been turned into criminal proceedings and when there was no probability of conviction and proceedings would tantamount to abuse of process of law and court.

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

----S. 561-A---Inherent powers of High Court---Scope---Inherent powers vested in High Court were to be exercised in very rare and exceptional circumstances when the court had come to a definite conclusion that some exceptional circumstances existed in the case which might compel the Court to exercise such powers but never ever where alternate remedy was provided by the law itself.

Amin Khan for Petitioners.

Dy. Attorney General for Respondents.

Date of hearing: 29th March, 2016.

2016 P Cr. L J 1167

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

Syed FIDA UR RAHMAN SHAH and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 37 of 2016, decided on 5th April, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Penal Code (XLV of 1860), S.188---Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H---Disobedience to order promulgated by public servant, possessing unlicensed arms, and illicit arms and explosive material---Act of terrorism---Bail, grant of---Further inquiry---Accused persons were charged in the FIR; and as per prosecution story were arrested red handed, but, despite prior information, the Investigating Officer, did not associate any respectable person of locality; violating the provisions of S.103, Cr.P.C.---Only Police Officials were cited as recovery witnesses---Non-compliance of S.103, Cr.P.C., even at bail stage, could be considered circumstance favouring accused; and could be termed a sinister attempt to conceal truth, on the part of prosecution---No evidence was available regarding planning of commission of subversive act, for which accused persons had been booked, except the statement of accused persons under S.21-H of Anti-Terrorism Act, 1997---Samples of the explosive material, allegedly recovered from accused persons, had not been sent to expert for opinion---Case against accused persons, being of further inquiry, they could claim bail as of right---Accused were admitted to bail, in circumstances.

Raja Shakeel Ahmad for Petitioners.

Deputy Advocate-General for the State.

Date of hearing: 5th April, 2016.

2016 P Cr. L J 1289

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

NAEEMULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 44 of 2014, decided on 9th March, 2016.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 21-H---Qatl-i-amd, common intention, act of terrorism, conditional admissibility of confession---Appreciation of evidence---Evidence collected by Investigating Officer, had shown that none had seen the occurrence---Trial Court had based the impugned conviction on the statement of accused recorded under S.21-H of Anti-Terrorism Act, 1997, before a Senior Officer---Such conditional confession, was insufficient for conviction, until such statement was not corroborated through some unimpeachable, reliable, and trustworthy source or strong circumstances---Said confessional statement by itself could not constitute material evidence on which a criminal case could be based for conviction---Such confession would be read as a piece of evidence along with other implicating material on the record---Case of acquitted accused, being at par with the case of accused, rule of consistency demanded that accused, who was equally charged for same offence, must be treated equally---Police had failed in conducting proper investigation and submitted challan against accused under Special Law i.e. Anti-Terrorism Act, 1997---Impugned conviction and sentence being not based on any evidence, was liable to be set aside---Conviction and sentence passed against accused, were set aside, and accused was acquitted of the charges against him, and he was released, in circumstances.

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

----Art. 40---Information received from accused, proof of---Benefit of Art.40 of Qanun-e-Shahadat, 1984 would go to prosecution, when an accused would lead the Police to the site of occurrence, which was still unknown to Police and that from the site, any signs relevant to the occurrence had been discovered.

Amjad Hussain for Appellant.

Deputy Advocate-General for the State.

Date of hearing: 9th March, 2016.

2016 P Cr. L J 1357

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

ASHIQ HUSSAIN CHANGEZI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 33 and 36 of 2013, decided on 24th March, 2016.

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

----S. 3---Anti-Terrorism Act (XXVII of 1997), S. 21-H---Qanun-e-Shahadat (10 of 1984), Art. 40---Causing explosion likely to endanger life or property---Appreciation of evidence---Benefit of doubt---Site plan was not a substantive piece of evidence which was only prepared to explain ground realities noted down after the occurrence so that court could examine to know as to how the case of prosecution was set down soon after the occurrence---Accused could not be convicted merely on the basis of site plan which was alleged to have been prepared on his pointation when there was no other corroboratory or confirmatory evidence on record---Recovered articles were not sealed at the spot nor those were sent to expert for expert opinion---Cutting on the date of occurrence existed in the FIR and there was material contradiction in the present case---When material contradiction existed then accused was to be blessed with its result not the prosecution---Such single circumstance would create an inherent doubt in the prosecution case which would be sufficient for extension of benefit of doubt to the accused---Evidence of accused pointing out the place of occurrence was inadmissible in evidence as no fresh facts were discovered in consequence of information received from the accused---For the purpose of making information received from an accused in police custody as admissible in evidence discovery of fresh and relevant facts was mandatory---When place of occurrence and its details were already known to everyone then prosecution could not claim that the pointation of place of occurrence by accused be considered as a piece of evidence against him---Confessional statement of accused under S. 21-H of Anti-Terrorism Act, 1997 was defective piece of evidence as it did not fulfill the requirement of a confession---No other evidence existed against the accused except statement under S. 21-H of Anti-Terrorism Act, 1997 which could not be made base for conviction when corroboratory evidence was lacking---Trial Court had treated the pointation of place of occurrence as extra judicial confession which was out of scope of extra judicial confession---Circumstantial evidence in criminal case would be considered a weak type of evidence unless and until it was interlinked, interlaced and interwoven but all such ingredients were lacking in the present case---Evidence produced by the prosecution was mutually destructive---Prosecution had failed to prove its case against the accused---Trial Court had erred in convicting the accused without any cogent and convincing evidence---Conviction and sentence recorded by the Trial Court were set aside and accused was acquitted from the charge---Appeal was allowed in circumstances.

(b) Criminal trial---

----Site plan---Evidentiary value---Site plan was not a substantive piece of evidence.

(c) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence would be considered a weak type of evidence unless and until it was interlinked, interlaced and interwoven.

Sherbaz Ali Khan for Appellant.

Malik Sher Baz, Dy. A.G. for the State.

Date of hearing: 24th March, 2016.

2016 P Cr. L J 1362

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

ADNAN ALI and others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Nos. 143 and 160 of 2015, decided on 8th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 170, 354-A, 376, 506 & 34---Personating a public servant; assault or criminal force to woman with intent to outrage her modesty; rape; criminal intimidation; common intention---Bail, refusal of---Question as to whether hymen rupture of victim was old or fresh was regarded as evidence---¬Record, in the present case showed that the victim had been subjected to Zina in brutal manner by the accused persons---Victim first appeared before the police and then before the court and made detailed statement about her grievance, fully implicating the accused and confirming the contents of the FIR---Statement of the victim, that the accused had taken her away forcibly from her house and committed Zina with her against her will, was sufficient to suggest that the accused had committed the offence, when any animosity between the parties for false implication was absent---Admittedly, at the time the victim was medically examined the hymen was not intact---Medical report was, however, silent as to whether hymen rupture was old or fresh, but the same would be determined by the trial court---Victim of rape, who resided in a narrow society where normally such person avoided to expose herself and to take the risk of such blame, especially when the victim was still unmarried; presumption would be that the victim would not have dishonoured herself or her family without any reason---Accused persons had committed a heinous offence which was hit by the prohibitory clause of S. 497, Cr.P.C.---Bail application was declined accordingly.

Latif Shah and Manzoor Hussain for Petitioner (in Cr. Misc. No.143 of 2015).

Dy. Advocate-General for the State (in Cr. Misc. Nos.143 and 160 of 2015).

Saeed Iqbal for the Complainant (in Cr. Misc. Nos.143 and 160 of 2015).

Sherbaz Ali for Petitioner (in Cr. Misc. No. 160 of 2015).

Date of hearing: 8th January, 2016.

2016 P Cr. L J 1387

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHAFI-UR-RAHMAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Misc. No. 60 of 2016, decided on 29th April, 2016.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Initially, firing was attributed to accused, and name of co-accused did not figure in the FIR---Recovery of one iron rod was effected on the pointation of accused; and later on, on the arrest of co-accused, recovery of one .30 bore pistol was effected from co-accused, which was against the initial version of FIR---Deceased was present in the house of father of accused at 01.00 a.m. at night, his presence at the place of occurrence with the sister of accused, was in pursuit of illicit liaison and as per contents of the FIR, both sister of accused and deceased were murdered when found in objectionable condition---Deceased intruded in the house of a stranger just to fulfil his lust and was done to death, when engaged in sexual intercourse with the sister of accused---No justification existed to justify the presence of deceased in the house of father of deceased/sister of accused---Quantum of sentence, needed serious consideration, bringing the case within the ambit of further inquiry covered under S.497(2), Cr.P.C., in view of intricacies and anomalies involved in the case---Case being of further inquiry, accused had become entitled for the grant of bail as a matter of right and not as a matter of grace/concession and bail facility could not be denied to accused on any other ground/pretext---Accused, was allowed bail, in circumstances.

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

----S. 154---FIR---Scope---FIR, no doubt, was not an encyclopedia and it was not necessary that it should contain all the details of the occurrence, but, court could take the notice of it and any departure/deviation from the FIR and the benefit of the same would go to accused even at bail stage.

Munir Ahmad, Imtiaz Hussain and Akhtar Ali for Petitioners.

Malik Sherbaz, Dy. A.-G. for the State.

Date of hearing: 29th April, 2016.

2016 P Cr. L J 1431

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

MIRBAZ ALI FARAZ and others---Petitioners

Versus

The STATE through NAB Gilgit-Baltistan, Secretariat Gilgit and others---Respondents

Writ Petition No.24, 27 and 29 of 2016, decided on 24th May, 2016.

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

----S. 9(a)(i)(iv)(v)(vi)--- Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 71(2)---Corruption and corrupt practices---Writ petition---Bail, grant of---Bar existed on grant of bail to accused booked under National Accountability Ordinance, 1999, but the jurisdiction of the Superior Courts could not be taken away by any enactment---Superior judiciary always played its role for rescue of the people and Judges of the Superior Courts never bowed before the executive, if their actions were adjudged malicious---When under any special law, the provision of bail was not available, the aggrieved party could approach the court under constitutional jurisdiction and the court could entertain the prayer keeping in mind the scheme of law, provided under Ss.497/498, Cr.P.C., and allowed the same if a case of further inquiry was made out---If a particular ground, was not taken in a bail petition, it could be raised at the time of arguments, if it would go to the root of the case---Duty of the court in such situation, was only to safeguard the interest of the both parties---Court could take the notice of subsequent events, while hearing a writ petition---Each case, was decided according to its own merits and peculiar circumstances, after taking into consideration all the attending circumstances---Actual beneficiaries in the case, who were privy to whole of the affairs, were at large and NAB authorities, could not arrest them---NAB authorities had their own selective system---National Accountability Ordinance, 1999, was a special law and its applicability in oppressive manner, was neither permissible, nor could be allowed and was to be tested on the touchstone of Fundamental Rights guaranteed by the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Misuse of law by NAB authorities could not be overlooked or ignored by the court---NAB authorities in respect of their functionaries and use of powers were subject to judicial scrutiny---NAB authorities, in the present case, had arrested only low profile employees and actual beneficiaries were enjoying liberty--- Role of each accused was to be seen in depth including chain of all their superiors, which would only be possible after recording of evidence---Case against accused, required further inquiry--- Accused, were admitted to bail, in circumstances.

PLD 2003 SC 668 ref.

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

----S. 497(1)---Power to grant bail on medical ground---Bail under S.497(1), Cr.P.C., was only discretionary and discretion was exercised, when the court would come to the conclusion that despite advance medical technology, and availability of most modern ways and means of treatment, a particular accused still needed, such an extra and constant care which was not available in jail.

Muhammad Essa and Shafqat Wali for Petitioners (in W.P. No. 24 of 2016).

Malik Shafqat Wali for Petitioners (in W.P. No. 27 of 2016).

Amjad Hussain and Islamuddin for Petitioners (in W.P. No. 29 of 2016).

Wasiq Hussain, Special Prosecutor for NAB assisted by Deputy Director and Assistant Director for NAB.

Special Prosecutor NAB/I.O. of the case, Abbas and Additional Director NAB, Hamad Khan Niazi are also in person.

Date of hearing: 18th May, 2016.

2016 P Cr. L J 1481

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AMIR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Misc. 26 of 2016, decided on 13th April, 2016.

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 and his two sons, were charged in FIR for opening fire on the deceased---Abscondance of accused---Effect---Deceased no doubt had received only one fire shot injury, but crime empties of two different bores had been recovered from the place of occurrence---Point of delay in lodging of FIR and cooking up a false story was to be determined by the Trial Court after recording of evidence---Mere delay in lodging FIR, could not be made a ground for release of an accused on bail in an offence of murder, if prima facie a case was otherwise made out---Accused remained fugitive from law, whereas his two sons were at large---Enlargement of accused on bail, would amount to grant of premium to the absconder, who would lose normal rights, guaranteed by substantive as well as procedural law---Accused being in jail for the last one year, without any substantial progress in the trial, Trial Court, was directed to take up the case on day to day basis and complete the case within 90 days---Bail was refused in circumstances.

Shahzad Iqbal and Imtiaz Hussain for Petitioner.

Muhammad Hussain and Amjad Hussain for the Complainant.

Additional A.-G. for the State.

Date of hearing: 13th April, 2016.

2016 P Cr. L J 1495

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

SHAKEEL AHMAD and another---Petitioners

Versus

The STATE---Respondent

Cr. Misc. 146 of 2015, decided on 13th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 51---Possessing and trafficking narcotics---Bail, refusal of---Section 51 of Control of Narcotic Substances Act, 1997, had created a bar to grant bail to accused, charged under Special Law i.e. Control of Narcotic Substances Act, 1997---Refusal of bail was rule, and grant was only an exception in cases falling under said Act---For availing exception provided in S. 51 of the Act, accused had to make out a case---Prosecution had two fold responsibilities firstly, it was to establish that the contraband narcotics recovered, was in conscious possession of accused; and secondly to establish that a particular quantity had been recovered from a particular accused---In absence of such evidence, it would be difficult for the court to draw inference against accused---In the present case, no apparent defect existed which should be resolved in favour of accused---Courts were extending concession of bail to accused, where participation/implication of accused was doubtful or debatable---Control of Narcotic Substances Act, 1997, was a Special Law, which had been enacted to curb the drug traffickers, and severe punishment had been proved to create deterrence for like-minded people---Accused persons having failed to make out a case for exercise of discretion of the court in their favour, bail petition, was dismissed, in circumstances.

Amjad Hussain for Petitioners.

Manzoor Hussain, Legal Advisor for ANF present.

Date of hearing: 13th April, 2016.

2016 P Cr. L J 1511

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

SAEED ALAM and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 2 of 2014, decided on 6th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-i-amd, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Compromise was effected between accused and legal heirs of the deceased pending appeal---Accused were acquitted from all the charges on the basis of compromise, but appeal under S.13(d) of Pakistan Arms Ordinance, 1965, was fixed for hearing---Many material contradictions existed in the statements of prosecution witnesses regarding mode and manner of recovery of arms---Mode and manner of recovery, was not convincing, which created doubt that recovery was planted, and a false story of recovery was cooked up---Non-association of independent recovery witness was also a factor, which could not be lightly ignored in peculiar circumstances of the case--- Responsibility to prove the case against accused was always upon the prosecution; and even if no question was asked by the defence regarding non-association of independent witness, still the benefit would go to accused---Prosecution had failed to establish the charge against accused---Grave doubts existed in the prosecution case benefit of which was extended to accused, and he was acquitted from the charge.

Imtiaz Hussain for Appellants.

Malik Sherbaz, Dy. A.-G. for the State.

Date of hearing: 5th May, 2016.

2016 P Cr. L J 1584

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

FIDAULLAH---Petitioner

Versus

The STATE---Respondent

Cr. Rev. 5 of 2016, decided on 16th May, 2016.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.265-K---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, common intention---Appreciation of evidence---Complainant had been changing his version, time and again---Complainant termed the murder the result of sectarian hatred in the FIR, but later on in his application, he charged five accused persons, including accused for commission of murder---Out of said five accused persons, two had been released by the Police, while third was absconder---Complainant, did not file a private complaint or sought any remedy available to him under law against said released accused persons---Investigating Officer, did not conduct investigation in a fair and transparent manner---Alleged eye-witnesses of the occurrence, stated in their statements under S.161, Cr.P.C., that the firing was opened by two muffled persons, but no identification parade was held in that regard, after arrest of accused, which was a mandatory requirement of law---Only evidence available on the record was pointation of place of occurrence by accused, while in Police custody---Said pointation was not covered under Art.40 of Qanun-e-Shahadat, 1984, as there was no discovery of fresh facts, and the place of occurrence was already known to the Police---Remedy for accused, facing criminal trial, was available to invoke the provisions of S. 265-K, Cr.P.C., in sessions trial, if no offence was made out against him---No embargo had been placed on the powers of the court to acquit accused under S.265-K, Cr.P.C. at any stage of proceedings, if the charge was groundless and the possibility of conviction was not insight---No incriminating evidence was available against accused---Accused was relieved from the criminal liability of FIR registered against him under Ss.302, 34, P.P.C.

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

----Art. 22---Identification parade---Purpose---Identification parade was conducted under Art.22 of the Qanun-e-Shahadat, 1984 for two purposes, the first was to establish the identity of accused and the other to rule out the possibility of false implication of accused by the complainant/witnesses for any ill designs.

Abdul Khaliq for Petitioner.

Malik Sherbaz, Dy. A.-G. for the State.

Date of hearing: 16th May, 2016.

2016 P Cr. L J 1605

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

PERVAIZ AKHTER---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 85 of 2016, decided on 6th June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Explosive Substances Act (XI of 1908), S.5---Pakistan Arms Ordinance (XX of 1965), S. 13--- Recovery of illicit arms/ammunition---Bail, grant of---Further inquiry---Raid was conducted on spy information, and sufficient time was available with the raiding party to associate two respectable persons of the locality to join the proceedings; it was not necessary that the persons must be resident of a close vicinity---Provision of S. 103, Cr.P.C., for the purpose, could be liberally interpreted and scope of "locality" could be widened--- Criterion was "respectability", which was a prime consideration, and "locality" would not mean the people living in close proximity---Report, though was lodged promptly, but it did not reflect that accused was present in the house from where alleged recovery was effected, who was arrested on the following day of the occurrence---Recoveries were effected in absence of accused---Capability of accused in the crime and its ultimate quantum of sentence, were the questions, which could be answered after recording of evidence in the Trial Court, brought the case within ambit of further inquiry---Bail could not be refused to an accused, when a reasonable/slightest doubt would lurk in the mind of the court regarding involvement of accused in commission of a crime---Case against accused being one of the further inquiry, he was admitted to bail, in circumstances.

Muhammad Saleem for Petitioner.

Mir Muhammad, Additional A.-G. for the State.

Date of hearing: 6th June, 2016.

2016 P Cr. L J 1613

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

NIZAM ALI---Appellant

Versus

The STATE---Respondent

Cr. Appeal No. 53 of 2014, decided on 18th May, 2016.

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

----S.302---Criminal Procedure Code (V of 1898), S.431---Qatl-i-amd---Death of accused during pendency of appeal---Maintainability of appeal of "dead person"---Accused who was awarded life imprisonment with fine, died in jail during pendency of his appeal---Counsel for accused requested to hear the appeal on merits and assisted the court about maintainability of appeal of a "dead person"---Provision of S.431, Cr.P.C., made it clear that if an appellant would die during pendency of appeal, said appeal would not abate and legal heirs of deceased/appellant, could challenge conviction of appellant on merits to remove a stigma of conviction.

(b) Criminal trial---

----Witness---Dishonest improvement---Effect---When a witness, would make deliberate and dishonest improvement in his statement, he could not be believed.

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

----S. 154---FIR---Scope---FIR, was a basic document on which the structure of prosecution case was built for later proceedings---FIR, though was a document pertaining to complainant, but, it also would protect the right and interest of accused---In any deviation or departure from the first story of FIR, the benefit of such departure would go to accused.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Both the eye-witnesses had contradicted each other on almost all material points and their statements were mutually destructive---Mere recovery of a .30 bore pistol on the pointation of accused, would not connect accused with commission of offence, especially when no Forensic Expert Report was available on record---Medical evidence, only indicated the cause of death and did not establish identity of accused---Investigation was not fair and honest, which left many inherent lacunae in prosecution case, either due to lack of professional skills, or for some other extraneous considerations---Case was of acquittal, but since the deceased had died and his appeal, as requested by defence counsel was being contested, just to remove stigma of conviction, appeal was accepted and fine imposed by the Trial Court, was set aside.

Munir Ahmad for Appellant/convict.

Malik Sherbaz, Dy. A.-G. for the State.

Date of hearing: 18th May, 2016.

2016 P Cr. L J 1654

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

IJLAL HUSSAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Revisions Nos. 83 and 84 of 2016, decided on 8th June, 2016.

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

----S. 561-A---Inherent powers of Chief Court under S. 561-A, Cr.P.C.---Scope---Provision of S.561-A, Cr.P.C., were extraordinary, and could not and should not be exercised as and when any alternate remedy was available under the law---Said powers, were only meant to be exercised, when no alternate remedy was available; and the court felt that dictate of justice demanded exercise of powers under S.561-A, Cr.P.C.---Nothing in the Criminal Procedure Code, would curtail or limit the inherent powers of Chief Court to make such orders as could be necessary to give effect to prevent the abuse of process of any court, or otherwise to secure the ends of justice.

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

----S. 561-A---Penal Code (XLV of 1860), S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by Public Servant, corruption---Petition for quashing of FIR---Investigation of the cases was under way, and challans had not yet been submitted in the court---Chief Court, in exercise of powers under S.561-A, Cr.P.C., was not competent to quash the FIR, where challan of the case was not submitted in the court, when the petitions for quashing FIR were filed in the court---Chief Court under its inherent powers could quash judicial proceedings, if it would come to the conclusion that proceedings against an accused would amount to abuse of process of court---Since no proceedings were pending by the time the present petitions were filed, the question of preventing process of any court, did not arise---In the present cases, neither any order was made by any court or any process were issued, which were pre-requisite for exercise of extraordinary jurisdiction under S.561-A, Cr.P.C.---Chief Court, was not to quash any FIR on the ground of mala fides, or on those grounds, where some legal, as well as factual controversies were involved; and such matters were left for the Trial Court, where both the parties were provided level playing field to plead/prosecute their cases---Accused could not be convicted on the basis of such evidence, but when the challan had not been submitted in the court, and if FIR did give such details which was ultimately to be led against accused, it would be appropriate for accused to move/seek remedy in the Trial Court at the first instance---Order accordingly.

Raja Zia-ur-Rahman for Petitioners.

Javeed Akhtar, Dy. Attorney-General and Syed Dildar Hussain, A.D. FIA for the State.

Date of hearing: 8th June, 2016.

2016 P Cr. L J 1698

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

ASSADULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 01 and 03 of 2016, decided on 14th June, 2016.

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

----Ss. 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---No worth reliance evidence was available to connect accused persons with the alleged crime---Investigating Officer, just filled in the blanks and booked accused persons without collecting any circumstantial or corroboratory evidence---Two confessional statements of accused, were mutually destructive---Two site plans were prepared on the pointation of accused in the presence of Magistrate; one site plan was prepared on the pointation of co-accused; which showed lack of the standard and transparency of investigation carried out in the case---Pistol and crime empties, which were recovered on different dates, were sent together to Forensic Expert after a long and inordinate delay, which had reduced value of such recovery---Contention that no question was asked from the Investigating Officer about any tampering, would not absolve the prosecution from its duty---If the question regarding delay in sending the crime empties was not put to the Investigating Officer, the prosecution had to suffer for its consequences, and not the accused---After discarding the evidence of recovery, and its positive report, there remained nothing with the prosecution to maintain conviction of accused persons---Every piece of evidence produced by the prosecution, were mutually destructive---Prosecution having failed to connect accused persons with the crime, both accused persons were acquitted from the charges levelled against them and were released forthwith, in circumstances.

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

----S. 21-H---Conditional admissibility of confession---Scope---Court, while considering the vires of S.21-H of the Anti-Terrorism Act, 1997 and its implications, had to see two vital aspects, firstly, its admissibility; secondly its voluntariness---If S.21-H of the Anti-Terrorism Act, 1997, would be considered admissible in evidence, then its voluntariness, would be a question mark; because, if an accused was willing to confess his guilt, what were the extraordinary circumstances, which prevented his production before a Judicial Magistrate; where the Judicial Magistrate was conveniently available.

PLD 1998 SC 1445 and 2011 GBLR 475 ref.

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

----S. 32---Overriding effect of Anti-Terrorism Act, 1997---Scope---Anti-Terrorism Court, was a special court, and in terms of S.32 of Anti-Terrorism Act, 1997 was a court of session; where provisions of Criminal Procedure Code, 1898, and of Qanun-e-Shahadat, 1984 mutatis mutandis had been made applicable to the proceedings before a Special Court; which did not leave any ambiguity that self-contained provisions of Criminal Procedure Code, 1898 and Qanun-e-Shahadat, 1984 would be followed in the case of Anti-Terrorism Act, 1997---No provisions of Anti-Terrorism Act, 1997, would override the provisions of Constitution of Pakistan and Gilgit-Baltistan (Empowerment and Self-Governance) Ordinance, 2009.

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

----Art. 38---Confession before Police Officer---Scope---Confession before Police would be against the spirit of Art.38 of Qanun-e-Shahadat, 1984, Arts. 13 & 25 of Constitution of Pakistan and Art. 17 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Any confession made before a Police Officer, would be suspected piece of evidence and would not advance the case of prosecution; rather it would put the courts further to scrutinize the case of prosecution with extra care.

Muzaffar-ud-Din for Appellant (in Criminal Appeal No. 1 of 2016).

Burhan Wali for Appellant (in Criminal Appeal No. 3 of 2016).

Malik Sherbaz, Dy. A.G. for the State.

2016 P Cr. L J 1750

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

MUDASSIR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 20 of 2014, decided on 28th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 227---Penal Code (XLV of 1860), Ss. 302 & 316---Qatl-i-amd, qatl-i-shibih-i-amd---Alteration of charge by Trial Court---Scope---Prima facie, the occurrence related to S. 302, P.P.C., but Trial Court framed another charge-sheet, charging accused for offence under S. 316, P.P.C.---Trial Court was free to make any opinion after completion of trial and could convict accused for offence of S. 302, P.P.C. or 316, P.P.C., or any other offence, or even could acquit accused, but said Court had no power to change the charge-sheet; when there was no plausible reason for such charge---Prosecution had collected sufficient evidence connecting accused for the offence of S. 302, P.P.C.---Circumstances never demanded the reframing of charge-sheet for offence of S. 316, P.P.C.---Trial Court, in circumstances, had wrongly reframed charge-sheet for offence of S. 316, P.P.C.---Impugned orders whereby the Trial Court charge-sheeted accused for offence under S. 316, P.P.C., were set aside, in circumstances---Trial Court was directed for de novo trial of the case, or for re-writing the judgment in the light of evidence available on the record.

Johar Ali for Appellant.

2016 P Cr. L J 1812

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

REHMAT KHALIQ and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.21 of 2015, decided on 28th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Petitioners stood sureties for appearance of accused---Trial Court passed release order, soon after submission of said bonds by the petitioners as well as accused persons---Trial Court, subsequently, cancelled bail facility granted to accused, and issued notices to the petitioners and non-bailable warrants to accused---Trial Court through impugned order, ordered for forfeiture of bonds of the petitioners; directed for recovery of Rs.10,000,00 from the petitioners---Trial Court, did nothing against accused before taking action against the petitioners---Cancellation of bail facility to accused was a grave mistake of the Trial Court, as Trial Court though had powers to cancel the bail facility, but only after arrest of accused and never before such arrest---Cancellation of bail facility to accused, practically rendered the surety bonds submitted by accused discharged---Such action of the Trial Court benefited the accused---Trial Court could issue non-bailable warrants and could initiate proceedings for forfeiture of the bonds of accused without cancelling the bail facility to accused---Issuing of non-bailable warrants against the petitioners, and forfeiture of the amount of surety bonds of the petitioner, was bad in the eye of law, as said action had been initiated after cancelling bail facility of accused---Trial Court must have questioned police concerned for failure to produce accused in court---Impugned order, was set aside, in circumstances.

Burhan Wali for Petitioners.

2016 P Cr. L J 1841

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

BASHARAT HUSSAIN and another---Petitioners

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Writ Petition No.55 of 2016, decided on 28th June, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 69---Criminal Procedure Code (V of 1898), S. 497(2)---Writ petition---Corruption and corrupt practices---Bail, grant of---Further inquiry---Alleged fraud/embezzlement took place in the branch of a National Bank---Bank authorities were main privy to the offence and whole of that transaction was carried out under their nose---Manager of the branch of the Bank and Recovery Officer had been exonerated from the case after a plea bargain; they only deposited Rupees 22 lac each against a huge amount of Rs.2.2 billion which could not be a fair play---Such a big financial mischief, could not be committed without knowledge of the highups of the Bank---Petitioners, were neither the employees, nor office bearers of the said branch of the Bank---Petitioners, who were traders and got their goods cleared after depositing a valid bank deposit receipts, could not be held responsible which fact was a matter of further inquiry---Traders could have possibly a connection with said offence, but foundation of the scam was laid down by the Bank employees, who pickpocketed their own dwelling house---Despite a period of 90 days, References against accused persons had not been filed and the very object of S.16 of National Accountability Ordinance, 1999, was defeated---Bail could not be withheld as measures of advance punishment; people could not be allowed to rot in jail for an indefinite period---Main accused having been discharged from the case by NAB Authorities, liability of the petitioners (traders) would be determined by the Trial Court after recording of evidence---Case of the petitioners fell within the domain of further inquiry, bail was allowed to the petitioners, in circumstances.

Amjad Hussain for Petitioners.

Muhammad Amin, Special Prosecutor NAB assisted by Sharafat Ali AD, NAB for Respondents.

2016 P Cr. L J 1871

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

MUHAMMAD NASIR---Petitioner

Versus

STATE through National Accountability Bureau---Respondent

W. P. 34 of 2016, decided on 28th June, 2016.

National Accountability Ordinance (XVIII of 1999)---

---Ss.9(a)(i)(iv)(v), (vi), (xii) & 23---Corruption and corrupt practices---Bail, grant of---Allegations against the petitioner were that, he during his posting as Director Education Department, appointed many people against Rules and Regulations; obtained rupees 3 to 4 lac for each appointment, thus accumulated wealth beyond his known sources---No evidence existed that petitioner, either had left the country, or was not available in Pakistan---Mere gravity or heinousness of the offence, could not be a reason to keep petitioner behind the bars for an indefinite period of time---Liberty and freedom, guaranteed by Chapter-II of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, could not be curtailed except in accordance with law; courts had to strike a balance between rights of an accused and interest of the society---Any accused booked by NAB Authorities under various provisions of NAB, could not be kept in jail, merely an allegation that accusations were heinous in nature against accused---To ensure the presence of an accused before the court, the mechanism was provided under S.23 of National Accountability Ordinance, 1999---If the court or the prosecution was apprehensive that accused would jump bail, court could fix heavy sureties beside imposing conditions while granting bail---Facility of bail, had already been granted to co-accused---Petitioner was in detention for the last five months and the Reference against him had not been filed before Judge/ Accountability Court---Petitioner was an aged person and senior Government Official---No chance of his absconding existed or tampering with the evidence, which was documentary in nature and already in possession of NAB Authorities---Detention of petitioner in jail, would not serve any useful purpose---Petitioner, was admitted to bail, in circumstances.

Raja Shakeel Ahmed for Petitioner.

Muhammad Amin, Special Prosecutor NAB assisted by Sharafat Ali AD NAB along with record for Respondent.

2016 P Cr. L J 1906

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NASIR IQBAL---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.105 of 2016, decided on 2nd August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Dismissal of earlier bail application filed in different court---Filing of subsequent bail application---Maintainability---Earlier, four applications filed by accused in the Trial Court having been dismissed, accused filed two successive bail applications before different judges of Chief Court, which were dismissed and accused had filed (present) third application---Earlier two bail applications were dismissed by two different Judges of the Chief Court after considering each and every available ground; no fresh ground was available for filing third bail application---Judgments in both earlier applications were rendered after due application of judicial wisdom---Second and successive bail applications, as a matter of principle were always placed before the Judge, who decided the earlier bail application to avoid conflicting decisions---Filing of subsequent bail application before an other Judge, would amount to embark on review of orders of the Judge who passed or dealt with earlier application of the same accused in the same case---Provisions of S.497, Cr.P.C., in the present case, had been misused in a flagrant manner as present bail petition was filed before different Judge without availability of any fresh ground---If a ground was available and not taken, when first bail application was moved, same could not be taken or considered in a subsequent bail application---Present bail application was dismissed being meritless, in circumstances.

PLD 1986 SC 173; PLD 2012 Sindh 225; 2004 PCr.LJ 167; 1982 SCMR 153; 2007 PCr.LJ 1542; 2009 PCr.LJ 527; 2010 MLD 212; 1999 MLD 978; 2001 PCr.LJ 124; 2012 YLR 2568; PLD 2013 Pesh. 120; 2013 PCr.LJ 1318 and 2002 SCMR 184 ref.

Mashal Khan for Petitioner.

Dy.A.G for the State.

Amjad Hussain for the Complainant.

2016 P Cr. L J 1918

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

BAITHAM---Appellant

Versus

HAMZA KHAN and 5 others---Respondents

Criminal Appeal No. 22 of 2016, decided on 28th June, 2016.

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

----Ss. 417 & 249-A---Right of appeal against acquittal---Scope---When case was fixed for framing of charge, the Trial Court acquitted accused persons from the charge though no application under S. 249-A, Cr.P.C. had been filed---Powers under S. 249-A, Cr.P.C. could not be exercised suo motu by the Trial Court---Trial Court, in the present case, had afforded opportunity of hearing to both the parties and considered their points---Little deviation from the procedure could be waived, if the ambition of the court was to achieve the ends of justice, provided no prejudice was caused to either party---Contention of the complainant was that since the proper procedure for acquittal of accused persons, had not been followed, the remand of the case, would further the ends of justice---Validity---Appellate Court should be very slow in remanding the case, when whole record was available and Appellate Court could dispose of the case at its own, if dictates of justice, so demand---Trial Court had reached at a just and fair conclusion and acquitted accused person, through a well reasoned judgment, which did not call for interference by the Chief Court.

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

----Ss. 417 & 410---Appeal against acquittal and appeal against conviction---Distinction---Principles.

Sherbaz Ali Khan for Appellant.

Muhammad Umar Farooq for Respondents.

Malik Sherbaz, Dy. A.G. for the State.

2016 P Cr. L J 771

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

BILAL AHMED---Petitioner

Versus

JUSTICE OF PEACE/SESSIONS JUDGE, RAWLAKOT and 2 others---Respondents

Writ Petition No. 1617 of 2015, decided on 27th November, 2015.

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

----Ss. 302 & 322---Criminal Procedure Code (V of 1898), S.22-A---Qatl-i-amd, qatl-bis-sabab---Jurisdiction, and power of Justice of Peace---Case was registered against accused under S.302, P.P.C., but after investigation the Police submitted challan in the Trial Court under S.322, P.P.C.---On application filed by the complainant under S.22-A, Cr.P.C., Justice of Peace, directed the Police to present the challan under S. 302, P.P.C., instead of S. 322, P.P.C.---Validity---Justice of Peace, had exceeded his jurisdiction, while passing the impugned order---Justice of Peace, could not direct the Police to present challan in particular offence---Contention that writ petition was not maintainable on the ground of that alternate efficacious remedy, was available to the petitioner, was devoid of any force---When the order of the tribunal or authority was coram non judice, ab initio void and without jurisdiction, the presence of alternative remedy, would not preclude High Court from setting aside such order--- Writ petition was accepted and order passed by the Justice of Peace, was quashed--- Trial Court was directed to proceed with the challan submitted, before it in accordance with law.

Muhammad Javaid Khan v. Additional Sessions Judge, Multan and 2 others 2007 PCr.LJ 124; Ghulam Haider v. Additional Sessions Judge and others 2006 YLR 2772 and Messrs Shamim Bibi v. Additional Sessions Judge, Lahore and another 2008 YLR 2017 ref.

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

----S. 22-A(6)---Powers of Justice of Peace---Scope---Code of Criminal Procedure, 1898 had provided a complete scheme for investigation, registration of cases and trial, but S.22-A(6), Cr.P.C., had been enacted to provide a remedy for redressal of grievance of aggrieved persons against the Police, which they faced due to non-registration of the genuine cases---Similar powers could be exercised by highup of the Police on administrative side as well as the High Court under supervisory jurisdiction, but an independent forum had been provided by appointing Justice of Peace by the Legislature---Functions assigned to the Justice of Peace under S.22-A, Cr.P.C., had been listed in subsections (1), (2), (3)(a)(b)(c), (4) & (5)(a)(b)(c) of said section---Justice of Peace was also empowered to direct the concerned Police authorities in the matter enunciated under subsection (6) of S.22-A, Cr.P.C.---No court including the High Court could interfere in the investigation, until and unless a glaring case of neglect or misuse of authority was pointed out---Jurisdiction of Justice of Peace was limited only to the matter enumerated in said sections---Justice of Peace, could direct the Police to register the case, if a cognizable offence was made out from the facts stated in the application, submitted before him and could also pass an order upon unnecessary transfer of investigation from one Police Officer to another---Justice of Peace could also take appropriate order, where neglect, failure or excess was committed by the Police in relation to its functions and duties, if noted by him, as was provided in subsection (6)(iii) of S.22-A, Cr.P.C.---Word 'neglect', 'failure' or 'excess' committed by Police authority must be with reference to the investigation---Material collected by the Police, investigation carried out could be betterly judged by the Trial Court---Police or any authority, could not judge the legality and propriety of the material collected by the Police; and those powers vest with the Trial Court, who had to decide the case ultimately---Justice of Peace, could not direct the Police to present challan in a particular provision.

Shahnaz Begum's case PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142; PLD 1997 Lah. 15; 1996 SCMR 24 and Gul Waiz and others v. Zuhra Bibi and others 2010 PCr.LJ 45 ref.

Raja Gul Majeed Khan for Petitioner.

Ch. Shaukat Aziz, Additional Advocate-General for the State.

2016 P Cr. L J 40

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

ASIF NAWAZ KHOKHAR---Petitioner

Versus

The STATE---Respondent

Crl. Misc. No.564-B of 2015, decided on 23rd September, 2015.

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

----S. 497---Pakistan Arms Ordinance (XX of 1965), Ss. 13 & 20---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 188---Unlicensed sale of weapons, possession of illegal weapons---Bail, grant of---Accused, who sold arms at his shop, was found in possession of illegal weapons, and he was also alleged to be using his father's license for the sale and purchase of arms---Father of accused was a license holder for sale and purchase of arms---Accused moved an application before concerned authorities for transfer of dealership in his name, which was still pending (since about a year)---Details of weapons recovered from the shop of accused matched with the record seized by the police---Ss. 420 & 188, P.P.C. applied in the FIR were bailable, whereas, Ss. 468 & 471 were non-cognizable---Furthermore, S. 13 of Pakistan Arms Ordinance, 1965, in its entirety, was bailable---Accused was allowed bail in circumstances.

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

----S. 13---Criminal Procedure Code (V of 1898), S. 497---Section 13 of Pakistan Arms Ordinance, 1965, in its entirety, was a bail-able offence.

Ch. Abdul Aziz for Petitioner.

Ahmad Hassan Rana, State Counsel with Ghulam Muhammad Shah, SI with record for the State.

2016 P Cr. L J 98

[Islamabad]

Before Aamer Farooq, J

EJAZ BAIG---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.446/B of 2015, decided on 3rd August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss. 2(s), 139, 156(1)(8) & 157(70)---Foreign Exchange Regulation Act (VII of 1947), S. 8---Smuggling foreign and local currency out of Pakistan through airport---Bail, grant of---Further inquiry---Accused was prohibited from taking foreign currency out of Pakistan beyond the prescribed limit of $ 10,000 per person, without prior permission/approval of the State Bank of Pakistan---Accused was found in possession of foreign currency at the airport, which was much more than the said prescribed limit---Accused had claimed that five of his family members were also travelling with him hence the total foreign currency in his possession was within the prescribed limit---Itinerary information produced by the accused substantiated such claim of accused, and question as to whether family members of accused independently had the prescribed currency limit or the accused was carrying the currency on their behalf called for further probe in the matter---Another factor calling for further probe was that it was not clear from the FIR whether the accused had passed the Customs Counter at the airport and crossed the stage of making a declaration about the currency as provided under S. 139 of the Customs Act, 1969--- Challan against accused had already been submitted and he was no more required for purpose of investigation---Accused was allowed bail in circumstances.

Mirza Farhan Ahmed v. The State 2009 SCMR 304; Naseer Ahmed v. The State 1998 PCr.LJ 32 and 2014 PCr.LJ 1464 ref.

Sheikh Muhammad Suleman for Petitioner.

Ch. Abdul Khaliq Thind, State counsel, Muhammad Amin Feroz Khan with Muhammad Aslam, Inspector Customs for the State.

2016 P Cr. L J 156

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

GHIYAS UD DIN alias MOON---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 387-B of 2015, decided on 1st October, 2015.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 337-A(i), 337-A(ii), 337-F(i), 337-F(v) & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-badi'ah, ghayr-jaifah-hashimah---Bail, refusal of---FIR was lodged with a delay of (only) eight hours---Name of accused was disclosed by deceased himself before his death when his statement under S. 161, Cr.P.C. was recorded with permission of doctor---Deceased specifically nominated accused with active role of causing injuries---Accused was refused bail in circumstances.

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

----Ss. 156 & 497---Bail---Lapses by Investigation Officer in the prosecution case---Benefit of such lapses could not be extended to accused.

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

----S. 497---Bail---Grounds---Case of cross version FIRs---Cross version by itself was no ground for bail.

2005 SCMR 1402 rel.

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

----S. 497---Bail---Appreciation of evidence---Arguments by counsel of accused requiring deeper appreciation of evidence---Such arguments could not be considered at bail stage.

Choudhry Abdul Aziz for Petitioner.

Raja Rizwan Abbasi and Malik Nasir Abbas for the Complainant.

Ahmad Hassan Rana, State Counsel.

Muhammad Munir and Abbas Ali S.Is. with record.

2016 P Cr. L J 457

[Islamabad]

Before Athar Minallah, J

HAFEEZ AKHTAR KIYANI---Petitioner

Versus

BASHIR AHMED and 5 others---Respondents

Writ Petition No. 721 of 2014, decided on 21st December, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Illegal dispossession---Investigation of complaint---Object---Complaint filed by petitioner under Illegal Dispossession Act, 2005, was dismissed by Trial Court---Validity---Object of power to have complaint investigated through incharge of police station was to verify contents of complaint of complainant after satisfaction of Court that upon examination of complaint ingredients of S. 3(1) of Illegal Dispossession Act, 2005, were found in existence---Investigation under S.5 of Illegal Dispossession Act, 2005, could not be used as a tool for adding to allegation raised in complaint nor for gathering information or evidence so as to justify existence of a criminal act when the same could not be discerned from complaint itself---When Trial Court was satisfied that upon examination of complaint and documents annexed therewith ingredients of offence were not found to be in existence, it could dismiss the same on the ground that no offence was made out under S. 3 of Illegal Dispossession Act, 2005---Before taking cognizance or even when directing investigation under S. 5 of Illegal Dispossession Act, 2005, Court had to satisfy that complaint had disclosed or stated existence of offence under S. 3 of Illegal Dispossession Act, 2005---High Court in exercise of Constitutional jurisdiction remanded the matter, as order in question was passed by Trial Court by misreading or non-reading of material placed on record---Petition was allowed in circumstances.

Waqar Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others PLD 2011 SC 181 and Mst. Inayatan Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229 rel.

Munawar Hussain Abbasi for Petitioner.

Rana Muhammad Irshad for Respondents.

Date of hearing: 24th November, 2015.

2016 P Cr. L J 502

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

ZULFIQAR ALI RAJA---Petitioner

Versus

Raja GUL ZAMAN and others---Respondents

Criminal Miscellaneous No.5-Q of 2015, decided on 1st December, 2015.

Penal Code (XLV of 1860)---

----Ss. 295, 295-A, 295-C, 427, 506, 148 & 149---Criminal Procedure Code (V of 1898), Ss. 196 & 561-A---Injuring or defiling place of worship, outrage religious feelings, use of derogatory remarks, etc., in respect of the Holy Prophet, causing damage to property, criminal intimidation and rioting armed with deadly weapons---Sanction of government, absence of---Jurisdiction of Trial Court---Inherent jurisdiction of High Court---Investigating officer filed Challan in the Court of Magistrate but on application filed by complainant, the Challan was sent to Sessions Court as offence under S. 295-C, P.P.C. was included in it---Sessions Court in exercise of revisional jurisdiction concluded that offence under S. 295-C, P.P.C. was not attracted---Validity---Contents of complaint did not show circumstances for insertion of S. 295-C, P.P.C.---Magistrate paid no attention to investigation report which not only favoured deletion of S. 295-C, P.P.C. but also concluded that no such occurrence as reported through complaint had taken place---Ipse dixit of police was not binding on Court but such opinion could not be rendered futile by ignoring them altogether because in the face of such opinions and recommendations it was most necessary for Magistrate to have referred to or pointed out evidence, material on record and circumstance which in his opinion prima facie indicated commission of S. 295-C, P.P.C.---Magistrate allowed application of complainant on incorrect premises, therefore, that order was not sustainable in the eye of law and revisional Court had rightly excluded offence under S. 295-C, P.P.C.---Pre-requisites of S.196, Cr.P.C. was not followed in letter and spirit whereby it was mandatory that FIR under S. 295-A, P.P.C. could be registered only under authority of government or through an authorized person of government---No such sanction was obtained, therefore, to the extent of such offence the FIR was not sustainable in the eye of law---High Court omitted Ss. 295-A & 295-C, P.P.C. from the FIR---Petition was dismissed in circumstances.

Ghulam Sarwar v. The State 2008 YLR 704; JEO v. Ali Nawaz and others 2005 PCr.LJ 560; Haji Jamil Hussain v. Illaqa Magistrate Section 30, Multan and others 2012 PCr.LJ 159; Raja Khushbakhtur Rehman and others v. The State 1985 SCMR 1314; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267; Muhammad Sharif v. The State 2008 YLR 1386; Qari Muhammad Younis v. The State 2001 YLR 484; Bashir Ahmad v. The State 2000 PCr.LJ 902; Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 and Noor Uddin v. The State 2014 PCr.LJ 113 ref.

Raja Ikraam Amin Minhas, Advocate Supreme Court for Petitioner.

Asif Ali Tamboli and Mian Abdur Rauaf, Advocate-General along with Javed SI for Respondents.

Date of hearing: 14th October, 2015.

2016 P Cr. L J 638

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD FAIZAN RIFFAT ULLAH KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 87 of 2015, decided on 10th December, 2015.

(a) Medical Jurisprudence---

----Ossification test---Authenticity---Ossification test is though based upon guess forming opinion after examination of X-rays of wrist joints but it can hardly be variative of one year and not beyond that.

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

----S. 7---Penal Code (XLV of 1860), Ss. 302 & 364---Qatl-i-amd and kidnapping---Juvenile---Age, determination of---Ossification test---Accused assailed report of Medical Board whereby he was not declared to be a juvenile--- Validity--- Best way to determine age was educational record which was not filed by accused to seek separation of his trial as tender aged accused---Trial Court, in failure to submit such documents, ordered for constitution of Medical Board to determine age including ossification test---Medical Board consisting of four doctors gave its opinion regarding age of accused to be 25 years and 6 months which had to be considered authenticated, as there existed no reason to disbelieve ossification test as well as opinion formed by the Medical Board--- Mandate of law included medical opinion along with other material considered during the course of inquiry which was conducted on the orders of the Trial Court to thrash out real facts with regard to age of accused---Accused could not claim relief on the basis of documents submitted and in view of his own conduct by which he produced forged documents before Trial Court and also on the basis of variance in record--- Revision was dismissed in circumstances.

2005 MLD 148; 2004 MLD 1526; 2002 PCr.LJ 633; 2005 YLR 1029; PLD 2009 Lah. 535; 2013 PCr.LJ 1440; 2002 PCr.LJ 1237; 2002 MLD 1817 and 2002 PCr.LJ 2034 ref.

PLD 2004 SC 758 and 2004 SCMR 121 rel.

Syed Zahid Hussain Bukhari and Ms. Khalida Parveen for Petitioner.

Malik Waheed Anjum for Respondent No.2.

Ahmed Hassan Rana, State Counsel with Ghulam Habib, SI with record.

2016 P Cr. L J 672

[Islamabad]

Before Mohsin Akhtar Kayani, J

SAJID JAVED and others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE (WEST) ISLAMABAD and others---Respondents

W. P. No. 162 of 2016, decided on 4th February, 2016.

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

----Ss. 7, 4 & 3---Criminal Procedure Code (V of 1898), Ss. 265-C & 265-D---Prevention of illegal possession of property---Eviction and mode of recovery as an interim relief---Supply of statements and documents to accused---Framing of charge---Commencement of trial---Trial Court, allowing application under S. 7 of Illegal Dispossession Act, 2005, restored possession of the subject property to the complainants---Validity---Provisions of S. 7 of Illegal Dispossession Act, 2005 manifested that grant of interim relief was subject to the condition, 'during trial'---Taking cognizance of the case by the court was the first step, which might or might not culminate into the trial of the accused, and trial did not commence with taking of the cognizance--- Trial would not start until a period of seven days after supplying of the relevant copies to the accused in terms of S. 265-C(2)(b), Cr.P.C. had expired and the charge had been framed---Court had to perform its judicial duty under S. 265-D, Cr.P.C. to frame the charge after perusal of the police report, complaint and all other documents/statements filed by the prosecution, and if the court was of the opinion that sufficient ground existed to proceed with the trial, the court would frame charge in writing against the accused---Provision of S. 7 of Illegal Dispossession Act, 2005 had to be seen in the context of the word used in the same, especially the words, 'Court is satisfied' and 'found prima facie', which cast duty upon the court to perform all those functions, which required in framing of charge---Application of S.7 of Illegal Dispossession Act, 2005, therefore, could only be assumed when the entire material had been looked into and the court was of the considered view that the charges prima facie existed against the accused---Section 7 of Illegal Dispossession Act, 2005 would, therefore, could only come into play after framing of the charge---Trial Court had yet to conclude prima facie existence of the allegations after perusal of the FIR, police report, statement of witnesses and other documents and had to formulate its mind to frame the charge under S. 265-D, Cr.P.C. or otherwise---In the present case, as the charge had not yet been framed, order passed under S. 7 of Illegal Dispossession Act, 2005 was illegal and without jurisdiction---High Court, setting aside the impugned order, held that the application under S. 7 of Illegal Dispossession Act, 2005 would be deemed to be pending before the Trial Court, and the same would be taken up after the commencement of the trial---Constitutional petition was dismissed in circumstances.

2010 PCr.LJ 575; 2014 YLR 1791; 2014 YLR 390; 2015 PCr.LJ 913 and PLD 2007 Lah. 231 ref.

Faqir Bakhsh v. The State and others PLD 2015 Lah. 93; Rana Muhammad Ahsan Rasool v. The State and others 2013 PCr.LJ 953; Rabart alias D.C. v. ASJ Mian Channu District Khanewal and 7 others PLD 2011 Lah. 340; Ashiq Hussain and another v. Athar Sher and 2 others 2008 PCr.LJ 719; 2015 YLR 715 and Haqnawaz and others v. The State and others 2000 SCMR 785 rel.

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

----Ss. 265-K & 265-D---Illegal Dispossession Act (XI of 2005), Ss. 7, 6, 5, 4 & 3---Prevention of illegal possession of property---Power of court to acquit accused at any stage---Trial Court dismissed application filed by the accused under S. 265-K, Cr.P.C.---Any order in terms of S. 265-K, Cr.P.C., at that stage (before framing of charge), amounts to circumvent the powers of the Trial Court---Trial Court, therefore, had rightly held that the application under S. 265-K, Cr.P.C. was pre-mature--- High Court maintained the impugned order of dismissal.

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

----Ss. 265-C & 265-D---Illegal Dispossession Act (XI of 2005), Ss. 7, 4 & 3---Prevention of illegal possession of property---Supply of statements and documents to accused---Trial commences after framing of charge---Order under Ss. 265-C and 265-D, Cr.P.C. would be maintained, as under S. 265-C, the accused is entitled to be supplied the relevant documents of the complaint in order to enable him to know the exact nature of allegations before he was sent up for the trial---Purpose of said provision is to afford the accused sufficient time to study the allegations against him and prepare his defence, if any to provide the copies of the complaint or any other document to the accused free of cost not later than seven days before commencement of the trial---Supply of copies of relevant documents had direct connotation to the framing of charge, which meant that the trial of the accused would not start unless the relevant documents are supplied to him in terms of S. 265-C, Cr.P.C., which would then lead to framing of charge under S. 265-D, Cr.P.C.

Malik Ghulam Mustafa Kandwal for Petitioners.

Rizwan Akhtar Awan and Aman Ullah, ASI, P.S. Sabzi Mandi for Respondent No.2.

Date of hearing: 1st February, 2016.

2016 P Cr. L J 693

[Islamabad]

Before Mohsin Akhtar Kayani, J

SAJID JAVED---Petitioner

Versus

SHO, P.S. SABZI MANDI and others---Respondents

W. P. No.241-Q of 2016, decided on 4th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 440 & 448---Criminal Procedure Code (V of 1898), Ss. 249-A, 265-K & 561-A---Quashing of investigation---Trespassing---Petitioner sought quashing of FIR on the ground that the same was false and concocted just to pressurize and blackmail him to withdraw civil suit filed by the complainant of the FIR---Validity---Investigation was yet to be completed and there was nothing floating on surface of record to prove that further proceedings in the matter would amount to shattering the safeguard of fundamental rights of petitioner guaranteed under the Constitution---Any order passed at such stage would amount to stifling police investigation and hampering the due process of law---Petitioner had alternate efficacious remedy in terms of Ss. 249-A & 265-K, Cr.P.C., which could be applied at the appropriate stages, even the same were applicable at the initial stages---All such disputed facts required recording of evidence which could only be seen by Trial Court at appropriate stage---No jurisdictional defect or violation of law existed to quash proceedings---Constitutional petition was dismissed in circumstances.

Rana Shahid Ahmad Khan v. Tanveer Ahmed and others 2011 SCMR 1937; Liaqat Ullah Khan v. The State PLD 2015 Pesh. 115 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Malik Ghulam Mustafa Kandwal for Petitioner.

Rizwan Akhtar Awan for Respondent No.2.

Hadiya Aziz, State Counsel and Aman Ullah, ASI, P.S. Sabzi Mandi for the State.

Date of hearing: 1st February, 2016.

2016 P Cr. L J 804

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

FAZAL HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

W. P. No. 401 of 2016, decided on 18th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 550 & 561-A---Stolen vehicle---Civil litigation, pendency of---Vehicle in question was impounded by police under S. 550, Cr.P.C., from the respondent---Trial Court handed over custody of vehicle in question, to the petitioner but Lower Appellate Court found respondent entitled to the possession of the vehicle---Validity---Plea raised by petitioner was that he was registered owner of vehicle and litigation before Civil Court of competent jurisdiction was pending between parties---Vehicle in question was neither stolen nor involved in commission of any offence, therefore, it could not have been impounded by police under S. 550, Cr.P.C.---Dispute with regard to title exclusively fell within the domain of Civil Court and criminal proceedings could not be initiated at the behest of any party to exert pressure or to resolve dispute according to their desires---Vehicle was taken in possession from the custody of respondent and it was required to be handed over to him, therefore, such finding of Lower Appellate Court were correct and did not call for any interference---Proceedings initiated by local police under S. 550, Cr.P.C., were violative of mandatory provisions, therefore, same could not sustain---High Court while exercising powers under S. 561-A, Cr.P.C., quashed the proceedings initiated by police under S. 550, Cr.P.C.---Constitutional petition was dismissed accordingly.

Hassan Muhammad v. Nazar Hussain 2005 SCMR 1063 rel.

Sajjad Haider Malik for Petitioner.

Jamshid Khan for the Complainant.

Sadaqat Ali Jahangir with Zafar Iqbal, ASI for the State.

2016 P Cr. L J 809

[Islamabad]

Before Mohsin Akhtar Kayani, J

Raja ASIF KHAN---Appellant

Versus

MASOOD AHMAD BHATTI and others---Respondents

Criminal Appeal No. 203 of 2015, decided on 25th February, 2016.

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

----S. 3---Illegal dispossession---Onus to prove---Complainant is under a lawful duty to prove all ingredients of S. 3 of Illegal Dispossession Act, 2005--- Intention can be ascertained from the act of wrongdoer.

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

----Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---Circumstantial evidence---Location of plot---Determination---Accused was alleged to have dispossessed the complainant from plot in question who was convicted by Trial Court and sentenced to simple imprisonment for two months---Accused contended that he took over possession of the plot in question after proper demarcation from Capital Development Authority and after getting site-plan approved from the Authority, constructed his house---Validity---Complainant failed to prove his case beyond reasonable doubt---When case was built on circumstantial evidence it was the duty of complainant to link chain of evidence in a manner that it should form a continuous chain which could link one end to accused and the other to act of dispossession---When one link in the chain of such evidence was missing, the same had lost its validity---Matter between the parties could be a civil dispute regarding earmarking/location of plot in question which could be resolved by adopting proper legal course---Such dispute did not fall within the ambit, purview and very spirit of Illegal Dispossession Act, 2005---Conviction and sentence awarded by Trial Court did not qualify perameters of S. 3 of Illegal Dispossession Act, 2005, as the complainant and the entire chain of evidence did not prove ingredients of illegal dispossession in any manner---High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

2012 SCMR 1533; 2009 YLR 1252; 2013 PCr.LJ 188; PLD 2007 Lah. 231; 2007 PCr.LJ 1347; PLD 2010 SC 661; Waqar Ali and others v. The State and others PLD 2011 SC 181; 2009 SCMR 1066; 2010 SCMR 1254; PLD 2007 SC 423; PLD 2010 SC 725; 2012 SCMR 229; PLD 2013 Isl. 121; 2011 PCr.LJ 1300; 2011 CLC 1369; 2010 YLR 1982; 2010 PCr.LJ 268; 2010 YLR 495; 2010 PCr.LJ 422 and SBLR 2007 Sindh 1047 ref.

Syed Wust Ul Hassan Shah for Appellant.

Asad Raan for Respondent No.1.

Ch. Abdul Khaliq Thind for the State.

Date of hearing: 15th February, 2016.

2016 P Cr. L J 998

[Islamabad]

Before Athar Minallah, J

MUHAMMAD RIZWAN---Petitioner

Versus

The STATE and others---Respondents

W.P. No. 801 of 2011 and W.P. No. 1518 of 2012, heard on 11th March, 2016.

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

----Ss. 420, 467, 468 & 471---Criminal Procedure Code (V of 1898), Ss. 154 & 173---Constitution of Pakistan, Art. 199---Cheating and dishonestly inducing delivery of property, forgery of valuable security, will etc. forgery for purpose of cheating and using as genuine a forged document---Quashing of FIR sought in Constitutional jurisdiction of High Court---Submission of investigation report---Petitioner sought quashing of FIR registered against him on the allegations of cheating, forgery and using forged documents---Validity---High Court declined to entertain Constitutional petition as report under S. 173, Cr.P.C. had been submitted in Trial Court---Appropriate course for petitioner to follow was to avail various adequate remedies available under law---Constitutional petition was dismissed in circumstances.

Badruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; Lt. Col. (Retd.) Tariq Latif v. Mst. Jamila Sultana and another 2006 PCr.LJ 476; Jamot Ghulam Muhammad and 3 others v. The State and another 1972 PCr.LJ 1130; 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; 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 Balochistan and another PLD 1971 SC 677 ref.

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

----Ss. 420, 467, 468 & 471---Criminal Procedure Code (V of 1898), Ss. 200, 204 & 561-A---Constitution of Pakistan, Art. 199---Cheating and dishonestly inducing delivery of property, forgery of valuable security, will etc. forgery for purpose of cheating and using as genuine a forged document---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Complaint case---Challan case---Trial---Procedure---Summoning of accused---Petitioner sought quashing of process issued by Trial Court summoning the petitioner to face trial in private complaint---Validity---High Court while exercising jurisdiction under S. 561-A, Cr.P.C. or Art. 199 of the Constitution could not embark upon to examine adequacy or inadequacy of evidence---When same party lodging FIR had also instituted a private complaint containing same allegations against the same set of accused persons then the proper course for a Trial Court to follow was to hold a trial in complaint case first while keeping Challan case dormant awaiting fate of trial in complaint case---Trial Court acted with circumspection and had exercised power with utmost care and caution before passing an order for the process to be issued---No legal infirmity was pointed out so as to require interference with concurrent findings---Remedies were available to petitioner and it was appropriate for him to avail the same---Constitutional petition was dismissed in circumstances.

Reham Dad v. Syed Mazhar Hussain Shah and others 2015 SCMR 56; Sarwar and others v. The State and others 2014 SCMR 1762; Muhammad Farooq v. Ahmed Jagirani and others PLD 2016 SC 55 and Niaz Ahmed v. Hasrat Mahmood and others PLD 2016 SC 70 rel.

Barrister M. Saad Buttar and Riffat Hussain Malik for Petitioner.

Muhammad Ilyas Siddiqui, Ms. Hadiya Aziz, State Counsel and Raees, ASI for the State.

Date of hearing: 11th March, 2016.

2016 P Cr. L J 1056

[Islamabad]

Before Shaukat Aziz Saddiqui and Mohsin Akhtar Kayani, JJ

JAMSHORO JOINT VENTURE LTD. and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 562 of 2016, decided on 24th February, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 19---Notice---Territorial jurisdiction of High Court---National Accountability Bureau issued notice to petitioners from place "K" and petitioners assailed the same before High Court at place "I"---Validity---Inquiry/investigation was already under process regarding ex-Federal Minister at place "K" where Trial Court had taken cognizance of the matter---Complete record of inquiry was at place "K" and it related to gas fields which fell within the territorial jurisdiction of High Court at place "K"---Even petitioners did not challenge process of inquiry of ex-Federal Minister therefore, case of petitioners could not be isolated from those matters---Approval in that regard was granted by Executive Board meeting of National Accountability Bureau and all factors reflected by petitioners revolved around actions of inquiry officer at place "K" who collected evidence, interviewed one of the petitioners at place "K" and confronted him with collected evidence there---On the basis of collected evidence/material during inquiry, Executive Board meeting of National Accountability Bureau authorized investigation at place "K"---High Court declined to interfere in the matter---Constitutional Petition was dismissed in circumstances.

Saadat Anwar Qumbrani v. National Accountability Bureau and others Writ Petition No. 1965 of 2015 rel.

2009 CLD 1998; 1985 SCMR 758; 1997 SCMR 1874; 1996 CLC 539; PLD 2006 SC 328; PLD 2006 SC 328; 2006 CLD 18; 2012 CLC 884; Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343; Commissioner Inland Revenue, Zone-III, Karachi v. Messrs Adam Sugar Mills Limited, Karachi 2013 PTD 556; Ghulam Haider v. Farkhanda Iqbal and 2 others 2012 MLD 1438; Muhammad Athar v. Ministry of Defence, Government of Pakistan, through Secretary Defence, Rawalpindi and 6 others 2012 PLC (C.S.) 1223; A. R Khan and Sons (Pvt.) Ltd. Through Authorized Officer and 3 others v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others 2010 CLD 1648; Messrs Syngenta Pakistan Ltd. Through Authorized Supply Manager v. Asif and 2 others PLD 2013 Sindh 536; Muhammad Hanif v. Station House Officer, Police Station Naushehro Feroze and another 2013 PCr.LJ 449; Lucky Enterprises, Goods Forwarding Agency through Proprietor v. Messrs Zeal Pak Cement Factory Ltd. through Chairman/Managing Director PLD 2013 Sindh 277; Flying Craft Paper Mills (Pvt.) Limited v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874 and Messrs Facto Tractors Limited Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others PLD 2006 Kar. 479 ref.

Ch. Aitzaz Ahsan, Khawja A. Tariq Raheem, Muhammad Azhar Siddiqui, Barrister Gohar Ali Khan for Petitioners.

Syed Hassan Ali Raza for Respondent No.2.

Ch. Munir Sadiq, Deputy Prosecutor General, NAB.

2016 P Cr. L J 1103

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

GHULAM UMER MEMON and others---Petitioners

Versus

JABBAR SATTI and others---Respondents

Criminal Revision No. 69 of 2014, decided on 26th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 94, 190, 265-C & 540---Illegal Dispossession Act (XI of 2005), Ss. 3, 4, 5 & 7---Prevention of illegal possession of property---Summoning of witnesses---Petitioners, who were lawful owners in possession of land in question, alleged that, respondents had illegally encroached upon almost entire land in question by dispossessing the petitioners from said land---Petitioners filed complaint under Ss.3 & 7 of Illegal Dispossession Act, 2005 and the trial of the case commenced---When the matter was at the stage of arguments, without recording of remaining evidence, petitioners requested the Trial Court through application for summoning of the witnesses, as the list of witnesses, could not be attached at the earlier stage of the complaint---Said application was dismissed by the Trial Court---Validity---Witnesses, required to be summoned, were necessary material witnesses for reaching at a just and proper conclusion of the matter; and if they were not summoned, petitioners would suffer irreparable loss---Petitioners did not figure out names of any other prosecution witness in the list, which was initially required to be submitted in compliance of S.265-C, Cr.P.C.---Non-furnishing list whereof, would not disentitle the complainant to call or recall any other prosecution witness during proceedings---Any party to the proceedings; during investigation or trial, as envisaged by S.94, Cr.P.C., could request for summoning the record through witnesses for the purpose of just and fair trial---Administration of criminal justice required that every opportunity to the parties be provided---Petitioners/complainants, had sought examination of those prosecution witnesses, whose names could not be submitted earlier---Charges had not been framed, which was the stage of commencement of trial---Prior to that, an opportunity could be provided to summon the witnesses, as S.265-C, Cr.P.C., required for production of statements of prosecution witnesses and requisition of record---Petitioners under Illegal Dispossession Act, 2005 were not debarred to summon witnesses or the record---Impugned order was set aside---Application moved by the petitioners for summoning of record through witnesses, was allowed, in circumstances.

2012 SCMR 229 ref.

Muhammad Saeed Raja and Raja Yasir Ali for Petitioners.

Sardar Arshad Mahmood Chohan and Sardar Shoukat Hayat Khan for Respondent No.3.

Ch. Abdul Khaliq Thind, Standing Counsel with Naeem Abbasi, Inspector, P.S. Nilore, Islamabad.

2016 P Cr. L J 1153

[Islamabad]

Before Miangul Hassan Aurangzeb and Aamer Farooq, JJ

SHAFIQUE A SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

W.P. No. 183 of 2016, heard on 3rd March, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 9(b)---Bail, grant of---Policy decision---Misuse of authority---Petitioner was arrested by National Accountability Bureau on the allegation that he being official in Housing Foundation in question got allotment of plot on lesser price in his favour---Validity---Allotments of additional plots made by the Housing Foundation were cancelled and amount deposited by allottees was secured---Disputed plots were not allotted at lower or concessional rates and the same were allotted at reserved price fixed by the Foundation---If National Accountability Bureau felt that plots in question were to be sold at market price rather than the reserved price then the same principle was to be applicable across the board to all plots that were sold/allotted by the Foundation wherever those were---Such was to be a larger issue warranting policy decision by competent authority---Petitioner did not usurped powers of another public functionary so as to derive a gain or benefit for himself---Ultimate authority in granting allotment of plot to petitioner was Director General and allotment was made in favour of petitioner after he satisfied prescribed criteria---Bail was allowed in circumstances.

Tariq Javed Afridi v. State PLD 2002 Lah. 233 rel.

Ch. Abdul Aziz for Petitioner.

Sardar Muzaffar Ali Khan, ADPG with Samina Rehman, Assistant Director/I.O. NAB for the State.

Date of hearing: 3rd March, 2016.

2016 P Cr. L J 1282

[Islamabad]

Before Aamer Farooq, J

FAWAD ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 746-B of 2015, decided on 8th April, 2016.

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

----Ss. 497 & 498--- Sales Tax Act (VII of 1990), Ss. 2(37), 33, 38 & 40---Tax fraud---Bail before arrest, confirmation of---Application for grant of bail before arrest, primarily was filed on the ground that system of a registered person was hacked i.e. there was an unauthorized access; that information obtained from such unauthorized access, tantamounted to unlawfully obtaining the evidence, which could not be relied upon---Validity---Section 38 of Sales Tax Act, 1990, had shown that any Officer authorized by Federal Board of Revenue or Commissioner, would have access to the business or manufacturing premises/Registered Office; or any other place of the registered person, where documents required or belonging to it; or any tax fraud committed were maintained---Said section did not provide any Officer to gain unauthorized access to the system/record maintained by any registered person---Under said provision of law, in order to access the record, an Officer should be specifically authorized by the Board or Commissioner---In the present case, no authorization was on record; nor any Officer visited the place of business/registered office of the registered person---System was accessed by Intelligence and Investigation Inland Revenue by using the user I.D. of an ex-employee of registered person for which no plausible explanation had been rendered by the counsel for department---Ulterior motive/mala fide on the part of department, could not be ruled out---Offences with which accused had been charged, did not fall in prohibitory clause of S. 497, Cr.P.C. and case fell within scope of further inquiry---Ad interim bail granted earlier to accused, was confirmed, in circumstances.

F.O.P. v. Messrs Master Enterprises (Pvt.) Ltd. 2003 PTD 1034; 2012 PTD 1416; Collector of Sales Tax and others v. Messrs Food Consults (Pvt.) Ltd. 2007 PTD 2356; Kh. Shahbaz Ahmad v. Deputy Director Directorate General and Investigation, Range Office Gujranwala 2012 PCr.LJ 1378; Dr. Hassan Jalisi v. The State and other PLD 2004 Kar. 388; Muhammad Ramzan v. Zafrullah 1986 SCMR 1380; Nazar Muhammad v. The State 2012 PCr.LJ 430; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Murad Khan v. Fazal-e-Subhan and others PLD 1983 SC 82; Muhammad Ishaq Saqi v. The State 2007 PCr.LJ 927; PLD 1985 SC 402; Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Ramzan v. Zafrullah 1986 SCMR 1380 ref.

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

----S. 498---Bail before arrest, grant of---Scope and terms---Grant of bail before arrest, was an extraordinary relief only in extraordinary situation to protect innocent persons against victimization through abuse of law for ulterior motives---Pre-arrest bail was not to be used as a substitute, or as an alternative for post-arrest bail---Bail before arrest, could not be granted, unless the person seeking bail would satisfy the conditions specified through subsection (2) of S.497, Cr.P.C., unless he established the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him, and that there were, in fact, sufficient grounds warranting further inquiry into his guilt---Person seeking pre-arrest bail, must also show that his arrest was being sought for ulterior motive, particularly on the part of the Police, to cause irreparable humiliation to him, and to disgrace and dishonour him---Such a person should further establish that he had not done or suffer any act, which would disentitle him to a discretionary relief in enquiry; he had no past criminal record, or that he had not been a fugitive at law---In the absence of a reasonable and a justifiable cause, person desiring his admission to bail before arrest, must in the first instance approach the court of first instance i.e. the Court of Session, before petitioning to the High Court for the purpose---Considerations for grant of pre-arrest bail, were not at all different from the consideration for grant of post arrest bail---As far as merits of the case were concerned, the only difference was that there must be additional basis for humiliation, harassment, mala fide, intention to disgrace and dishonour---If a person, was otherwise entitled to bail, no useful purpose would be served by putting him firstly behind bars, and then allowing him bail---Court had to keep a balance; and if a fit case for grant of bail was made out, bail before arrest was to be allowed in an appropriate case.

Nazar Muhammad and others v. The State 2012 PCr.LJ 430 ref.

Barrister Salman Safdar for Petitioner.

Hafiz Ehsan Ahmed Khokher and Muhammad Amin Feroz Khan for Respondents.

Syed Hasnain Ibrahim Kazmi, D.A.G., Qaiser Masud, Additional Director FIA, Hamayun Sarfraz, I.O. and Fazal Mehboob, S.I., FIA for the State.

2016 P Cr. L J 1315

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

MUHAMMAD SHAFIQUE---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.100-B of 2016, decided on 14th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession, import and export, trafficking or financing trafficking of narcotic drugs, etc.---Bail, grant of---Delay in sending samples of narcotics for chemical analysis---Quantity of recovered narcotics falling under borderline cases---Samples of the recovered contraband substances had been sent for chemical analysis with delay of seven days---Lapse on part of the police in sending the contraband substance for chemical analysis within the stipulated period, had made the case of the accused that of further inquiry---Quantity of narcotic substances allegedly recovered from the accused exceeded the borderline case falling between the offence under Ss. 9(b) & 9(c) of Control of Narcotic Substances, Act, 1997---All prosecution witnesses were police officials; hence, there was no chance of the accused tampering with the evidence---Accused had been behind bars for four and half months, and no prosecution witnesses had been examined so far--- Bail application was allowed accordingly.

Inayat Ullah v. The State 2006 PCr.LJ 840; Dilla Baz Khan v. The State 2008 PCr.LJ 1437; Ghulam Abbas v. The State 2011 YLR 1723; Asif Ali v. The State 2013 YLR 1241 and Sherin Muhammad v. The State 2006 PCr.LJ 726 rel.

Mahboob Ali v. The State 2007 YLR 2968 ref.

Wazir v. The State 2003 YLR 1163; Waris Ali v. The State 2006 PCr.LJ 1745; Hanook Babar Masih v. The State 2007 YLR 3105; Muhammad Javed v. The State 2009 PCr.LJ 1427 and The State v. Abul Ghanni 2010 SCMR 61 distinguished.

Muhammad Saleem Khan Baloch for Petitioner.

Ms. Hadia Aziz, State Counsel with Abdul Sattar, S.I. for the State.

2016 P Cr. L J 1

[Sindh]

Before Salahuddin Panhwar and Shahnawaz Tariq, JJ

ARBAB ALI and another---Appellants

Versus

The STATE---Respondent

Cr. Spl. A.T.A. No.D-66 of 2005, decided on 29th April, 2015.

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

----Ss. 302 & 393---Anti-Terrorism Act (XXVII of 1997) [as amended by Anti-Terrorism (Amendment) Ordinance (XXXIV of 2001)], Ss. 6(2)(d) & 7(b)---Qatl-i-amd, attempt to commit robbery, terrorism---Appreciation of evidence--- Acts falling within meaning of 'Terrorism'---Determination---Identification parade---Utility---Scope---Cause of death not disputed---Annoyance with police set as motive---Accused were alleged to have made attempt to commit robbery of motor cycle, committed robbery of rupees two thousand and killed deceased and injured his companion-complainant by firing with arms---Trial court, convicting accused for robbery and qatl-i-amd, sentenced them to imprisonment along with award of fine---Accused contended that provisions of Ss. 6 & 7 of Anti-Terrorism Act, 1997 were not applicable as alleged offence was one for personal gain---In the present case, place of incident was road, which was place of constant and frequent use of public---Accused, without any previous enmity, had attempted to rob motorcycle from deceased, who was one of users of such road---On resistance by deceased, accused, without any hesitation, caused fire arm injuries, which could be inferred as 'act to create fear' among such victims, that in case of any resistance, they would meet same fate---Although ultimate object of accused was to rob, which might be for personal gain, but manner in which they had acted was nothing to 'frighten public' that in course of such robbery or dacoity, if resistance was offered then victim would be done to death---Trial court had rightly found action of accused falling within meaning of 'terrorism'---Cause of death of deceased, that was result of fire arm injury was not disputed by defence---Cause of death also stood affirmed from medical evidence---Prosecution witnesses had categorically claimed that they had seen alleged incident, seen the accused (unknown persons), properly picked them up during identification parade, and also identified them in court during examination---Said claims of witnesses were not denied by defence nor did defence come up with any suggestions in that regard---Defence did not deny or disputed specifically that those witnesses did not saw incident or were not witnesses of incident---Evidence of identification witness could not be discarded if same explained role of identified person in court, circumstance justifying delay in identification parade, including type of witnesses and other factors and legal requirements---Trial court had committed no illegality in holding accused having been identified properly---Complainant had lodged FIR within two and half hours, wherein he had given names of prosecution witnesses---such promptness eliminated or least faded chances of deliberation or arranging witnesses---Status of witnesses was never found to be false by prosecution nor same was even challenged by blood relation of deceased---Although complainant was relative of deceased and other ocular witnesses of ocular account were his caste fellows, but that relationship was not sufficient to bring any cloud over credibility to those witnesses---In case of abduction or robbery or hurt, witness who had direct nexus with incident and claimed that incident lasted up to considerable time had significant value---Defence came up with plea that motive of their false implication was that of their annoyance with Superintendent of Police--- Said motive, prima facie, did not appear to be logical for reason that it was never difficult for SP to falsely involve or implicate accused in any case for which police at its own could---Such annoyance of SP also did not appear to be a consideration of such nature that those witnesses could depose falsely in mater of murder of their relative or least caste fellows---Recovery effected at pointation of accused also supported ocular accounts of prosecution---No illegality was found in impugned judgment---Appeal was dismissed in circumstance.

Ishaq Ali v. The State 2013 PCr.LJ 1808; Bashir Ahmed v. Muhammad Siddiqui and others PLD 2009 SC 11; Muhammad Saleem v. The State and others 2002 PCr.LJ 216; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Ahmed Jan v. Nasurllah and others 2012 SCMR 59; Tariq Mahmood v. The State 2008 SCMR 1631; Sultan Muhammad alias Bacha Khan v. The State 2008 SCMR 1636; Mohabbat Ali and another v. The State and another 2007 SCMR 142; Umer Farooque and 2 others v. Judge, Anti-Terrorism Court, Mirpurkhas and another 2014 PCr.LJ 1052; Ahmed Shah and another v. The State 2003 YLR 1977; Hazoor Bux and another v. The State PLD 2012 Sindh 469; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Murad Ali v. The State 2007 SCMR 146; Muhammad Ehsan v. State 2006 SCMR 1857; and Naik Muhammad alias Naika v. State 2007 SCMR 1639 ref.

Mirza Shoukat Baig v. Shahid Jamali PLD 2005 SC 530; Bacha Zeb v. State 2010 SCMR 1189; Muhammad Imran v. The State 2011 SCMR 1954 and Zulfiqar Ahmed and another v. The State 2011 SCMR 492 rel.

Bashir Ahmed v. Muhammad Siddiqui and others PLD 2009 SC 11; Tariq Mahmood v. The State 2008 SCMR 1631 and Mohabbat Ali and another v. The State and another 2007 SCMR 142 distinguished.

(b) Criminal trial---

----Recovery----Principles---Recovery is only corroborative piece of evidence---Absence of recovery is not material to disbelieve prosecution case where prosecution otherwise has proved its case.

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

----Ss. 6 & 7 (as amended)---Interpretation applicability and scope of Ss.6 & 7---Act falling within meaning of 'Terrorism'---Personal gains, plea of---Offences referred in S. 6(1) (a) to (c) & 6(2)(a) to (h), (j) to (p) of Anti-Terrorism Act, 1997 have been defined by legislature, hence all such offences falling within such corners of definition shall need no debate or scholarly work for holding those offences to be triable by Special Court---Application or misapplication of S. 6 or 7 of Anti-Terrorism Act, 1997 is always with reference to S.6(2)(i) of the Act---Term 'terrorism' is defined within meaning of S. 6(2) of Anti-Terrorism Act, 1997, as, if use of threat of action creates serious risk to safety of public or section of public or same is designed to frighten general public and thereby prevents them from coming out, carrying on their lawful trade, daily business or disrupts civil life---Intention of legislature is to cover all such acts or omissions (offences) which are not covered by S. 6(1) (a) to (c) & 6(2) (a) to (h), (j) to (p) of Anti-Terrorism Act, 1997, which regardless of said sections applied, and fall within four corners of S. 6(2)(i) of the Act---First part may be pressed where complained offence is claimed to have created serious risk to safety of public or section of public, which claim would require establishing of such fact---Second part of the provision would stand attracted if gathering circumstances justifies that complained action is designed to frighten public resulting in preventing them from coming out, carrying on their lawful trade, daily business or disrupting civil life---Deliberate use of terms 'frighten public' is of significance, but it cannot be believed that to prove that prosecution is to bring 'public' into witness box---Nature and impact of complained offence is to be examined by court on basis whereof intention of accused shall be determined---If complained action appears to have resulted in frightening public from any of above guaranteed fundamental rights, such action (offence) shall fall within meaning of 'terrorism'---Deliberate use of terms 'coming out', 'carrying on their lawful trade', 'daily business' or disrupting 'civil life' are purposeful which have got no direct relevance of offence committed by accused upon victim, but same speak about consequences and impact thereof upon public---Public is not direct victim of offence or benefit drawn by accused from offence--- Every offence not covering by S. 6(1) (a) to (c) & 6(2) (a) to (h), (j) to (p) of Anti-Terrorism Act, 1997 are committed for personal gains whether that be dacoity, robbery, killing (if same is not on plea of enmity) and even street crimes---If an offence claimed to be for personal gain shall exclude application of Anti-Terrorism Act, 1997, same shall amount eliminating object and purpose of the Act.

Mirza Shoukat Baig v. Shahid Jamali PLD 2005 SC 530 rel.

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

----Art. 22---Identification parade---Principles as to validity---Question of identification parade only comes into play when witness of incident makes two claims: Firstly, that he has seen unknown accused committing crime and secondly, that he can identify accused on seeing him again---Duty of prosecution does not come to an end only by saying that 'it is the man' but same continues unless prosecution has established that 'it is the man who committed the offence'-Prosecution is always duty bound not only to prove the happening of incident but also that it was accused who committed offence---Because of said object, it is always insisted that witness claiming to have identified or picked accused should also specify role played by such accused in commission of offence---Law should not be static but it should move along with times to meet all present and future situations, circumstances and challenges---Views as to examination of delay in identification parade, joint identification parade, number of dummies and non-disclosure of role have also undergone certain changes, clarifications and modifications---Identification by witness, who has seen crime at some distance and witness, who himself is victim makes difference---If such witness is stuck with his claim up to his evidence before trial court, such evidence cannot be ignored on minor irregularities found in identification parade or any lacuna on part of investigation.

Bacha Zeb v. State 2010 SCMR 1189 rel.

(e) Criminal Trial---

----Interested witness/related witness----Determination---Term 'related' should not be confused with term 'interested' because both are entirely independent of each other---Considerable distinction existed between terms 'related' and 'interested'---'Interested witness' need not necessarily be related; it is the person (interested witness) who has such motive on account of enmity or any other consideration that due to such enmity or consideration he has prepared himself to depose falsely---Term 'related' is positive in its meaning while term 'interested' is negative---'Related witness' is not necessarily obtaining favour for one but 'interested witness' is always to gain favour for whom or what he or she is interested in.

Muhammad Imran v. The State 2011 SCMR 1954 and Zulfiqar Ahmed and another v. The State 2011 SCMR 492 rel.

(f) Criminal Trial---

----Interested witness/related witness---Burden of proof---Burden is always upon prosecution to prove truthfulness of 'related witness', but where defence claims witness to be 'interested', burden shifts upon defence to establish that witness had such motive on account of enmity or any other consideration which compelled him to depose falsely.

Amjat Ali Sahito and M. Akhtar Bhatti for Appellant.

Shahid Ahmed, APG for the State.

Date of hearing: 27th February, 2015.

2016 P Cr. L J 47

[Sindh]

Before Abdul Rasool Memon and Zafar Ahmed Rajput, JJ

ALI GUL alias MUJAHID and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-33 of 2013, Criminal Appeal No. D-38 of 2013 and Criminal Jail Appeal No. D-34 of 2014, decided on 9th December, 2014.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possessing and trafficking narcotics---Appreciation of evidence---Both, complainant and Mashir, who were Police Officials, had deposed that accused was apprehended by them, when he was coming in rickshaw along with three other persons and on checking, a plastic bag containing 17 packets of charas, was recovered---Chemical Examiner's report proved that material was charas---Evidence of witnesses was unanimous on all aspects of the case; their evidence was consistent, coherent, and they had successfully faced the test of cross-examination, and nothing came on record to discredit their evidence---Accused was proved to have knowledge about charas allegedly found in the rickshaw---Prosecution through evidence, had successfully established that accused was apprehended on the spot; and from his rickshaw the plastic bag containing 17 K.Gs. of charas was recovered---Burden, in circumstances, shifted upon accused, but he failed to prove that he had no knowledge or consciously possessed the said article---Police witnesses were as good witnesses as other respectable public witnesses and their statements could not be discarded for the reason that they were Police employees, unless any animosity was shown or proved against them---No enmity was alleged against prosecution witnesses---Provision of S.103, Cr.P.C., was not applicable to a case of Control of Narcotic Substances Act, 1997, within the meaning of S.25 of the Act---Chemical Examiner's report revealed that sealed bag was received which contained signatures of marginal witnesses---Alleged delay in sending material to Chemical Examiner was not fatal to the prosecution case, in circumstances---Accused had failed to rebut the prosecution version produced in shape of ocular testimony---Prosecution had succeeded to prove its case for recovery of 17 K.Gs. charas from accused---In absence of any illegality or infirmity, impugned judgment warranted no interference---Appeal filed by accused, was dismissed.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Case of co-accused, was identical and was on the same footing as that of acquitted co-accused---Prosecution, had not produced any material to prove co-accused as hardened criminal to hold him dangerous---Prosecution, was justified in recording no objection for granting same relief to co-accused as was given to acquitted co-accused---Appeal of the co-accused was allowed and impugned judgment to his extent, was set aside, he was acquitted from the charge after extending him benefit of doubt.

Tariq Mehmood v. The State through Attorney-General PLD 2009 SC 39 and Muhammad Rafique v. The State 1997 SCMR 412 ref.

Mrs. Razia Ali Zaman Khan for Appellant (in Criminal Jail Appeal No. D-33 of 2013).

Appellant in person (in Criminal Jail Appeal No. D-34 of 2014).

Syed Meeral Shah, DPG for the State (in Criminal Jail Appeal No.D-33 of 2013, Criminal Appeal No. D-38 of 2013 and Criminal Jail Appeal No. D-34 of 2014).

Date of hearing: 13th November, 2014.

2016 P Cr. L J 79

[Sindh]

Before Muhammad Ali Mazhar and Muhammad Iqbal Kalharo, JJ

SARFRAZ AHMED and another---Petitioners

Versus

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

Constitutional Petitions Nos. D-3141 and D-3659 of 2015, decided on 4th August, 2015.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)--- Constitution of Pakistan, Art. 199--- Constitutional petition--- Bail, grant of--- Illegal pecuniary advantages, absence of---Deeper appreciation of evidence--- Case of further inquiry---Petitioners/accused persons were arrested by National Accountability Bureau on the allegations that they obtained sales tax refunds fraudulently---Validity---Deeper appreciation of evidence was not permissible at bail stage but keeping in view the role assigned to accused persons it was essential to see whether they were the sole authority or at the helm of affairs to pass refund claims by their own or for dealing matter of refund of claims, a chain of command/hierarchy was entrenched and couched in Rules itself making obvious the role and responsibility of different officers/officials starting from the stage of submission of refund claims till issuance of refund claims cheques---Question as to whether accused persons were responsible for processing of refund claims illegally or unlawfully or they were the sole and absolute authority to sanction the claims, required further inquiry---Investigating Officer did not collect any incriminating evidence to prove that accused persons obtained any unlawful gain or gratification or any abnormal Bank transaction or activity was noted in their Bank accounts or any assets was acquired by accused persons in their own name or ostensibly---Bail was allowed in circumstances.

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

Shoukat Hayat for Petitioners (in C.P. No.D-3141 of 2015).

Syed Mehmood Alam Rizvi and Zakir Leghari for Petitioners (in C.P. No.D-3659 of 2015).

Noor Muhammad Dayo A.D.P.G. NAB.

Sabih Rafay I.O. of the case.

Date of hearing: 15th July, 2015.

2016 P Cr. L J 107

[Sindh]

Before Aqeel Ahmed Abbasi and Hasan Feroze, JJ

SOHAIL JIWANI---Petitioner

Versus

GHULAM QADIR THEBO, ADDITIONAL INSPECTOR-GENERAL OF POLICE and another---Respondents

C.P. No. D-3733 of 2015, decided on 19th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 173--- Constitution of Pakistan, Art. 199--- Constitutional petition---Reinvestigation---Scope---Grievance of complainant was that after submission of Challan (Investigation Report), before Trial Court, the police could not reinvestigate the matter---Validity---Superior officers of police, in appropriate cases, at the request of complainant or accused party could order for further investigation or reinvestigation in a criminal case by some other officer of police, who could submit report pursuant to such further investigation or reinvestigation along with material or evidence gathered during such investigation before a competent court of jurisdiction---Such report or further investigation or reinvestigation was to be treated merely as an opinion of Investigating Officer and would not be binding upon concerned Magistrate, who was at liberty to pass appropriate order or judgment on the basis of material and evidence available on record---High Court directed the Trial Court to proceed with the matter in accordance with law---Petition was dismissed in circumstances.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Zeeshan Mustafa Lashari and another v. Province of Sindh through the Chief Secretary, Sindh, Karachi and others PLJ 2015 Karachi 190; Muhammad Ramzan v. Muhammad Ali and others PLJ 2015 Karachi 199; Aziz Ahmad v. Provincial Police Officer (I.G.P), Punjab Lahore and 6 others PLD 2005 Lahore 185; Muhammad Ashfaq v. Additional Inspector General of Police (Investigation) Punjab, Lahore and 3 others 2013 PCr.LJ 920; Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Arif v. The Inspector General of Police, Punjab, Lahore and others 2000 YLR 1960; Haq Nawaz and others v. Superintendent of Police and others 1999 PCr.LJ 1144; Muhammad Ajmal Khan and 15 others v. The State through Advocate-General and another 2003 YLR 701; Mirdad Khan v. Zahir Shah and 3 others 2000 PCr.LJ 1739 and Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924 ref.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Muhammad Anwar Tariq for Petitioner.

Muhammad Hanif Samma for Respondent.

Muhammad Iqbal Awan, APG for the State.

Date of hearing: 10th August, 2015.

2016 P Cr. L J 130

[Sindh]

Before Aftab Ahmed Gorar, J

AIJAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-18 and M.A. No.759 of 2014, decided on 24th November, 2014.

Constitution of Pakistan---

----Art. 203-DD---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 17(4), 20 & 24(2)---Penal Code (XLV of 1860), Ss. 302(b) & 392---Appeal against---Trial under Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Jurisdiction---Accused were convicted by Trial Court under Ss. 302(b) & 392, P.P.C. and were given life imprisonment and to suffer RI for 10 years---Contention of appellants was that High Court had the jurisdiction to entertain present appeal since sentence was awarded under provisions of Penal Code, 1860---Contention of complainant was that appeal should be filed before Federal Shariat Court as FIR was lodged under S. 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Held, that FIR and charges were though framed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but sentence was awarded under P.P.C. and it was the 'charge' that determined the forum---Mere passing of sentence under Tazir is not determinative of the forum---According to S. 24(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 only sentence of less than 2 years was appealable before the High Court---Under Art. 203-DD of the Constitution and S. 24 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 appeal against acquittal in a case under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 would come under exclusive jurisdiction of Federal Shariat Court to entertain, hear and decide appeals in such cases---Result of trial would not change the jurisdiction of the court---Appeal being non-maintainable, was transferred accordingly.

2009 PCr.LJ 747 and PLD 2002 SC 534 distinguished.

2010 YLR 657; 2011 SCMR 1142 and 2013 PCr.LJ 105 ref.

Muhammad Akbar v. The State 2003 YLR 1339; Karamat Khan and another v. The State 2002 PCr.LJ 1868; Muhammad Juman v. The State 2004 MLD 278; Moula Bux Gello v. The State 2002 YLR 2956 and Muhammad Safeer v. The State and another 2004 PCr.LJ 899 rel.

Ghulam Shabbeer Shar for Appellants.

Paramanand for the Complainant.

Zulfiqar Ali Jatoi, DPG for the State.

Date of hearing: 24th November, 2014.

2016 P Cr. L J 146

[Sindh]

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

MUHAMMAD ASLAM---Petitioner

Versus

BASE COMMANDER, P.A.F. BASE, KORANGI CREEK KARACHI and 2 others---Respondents

C.Ps. Nos.D-5796 and D-5874 of 2014, decided on 4th June, 2015.

Pakistan Air Force Act (VI of 1953)---

----Ss. 4(i)(a) & 72---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 199(3)---Constitutional petition---Armed forces, member of---"Active service"---Term "engaged in operations"---Son of petitioner was in service of Pakistan Air Force and was detained in FIR registered on the allegation of murder of his wife---Validity---Term "the force is engaged in operations" meant and included both the overt and covert operations against enemy---Person serving in force would equally be considered attached to or forming part of the Armed Forces which was either engaged in any open or secret operation against enemy---Whether there was any such operation going on at relevant time could not be gone into by High Court while exercising jurisdiction conferred under Art. 199 of the Constitution---Such was a question of factual nature that could only be attended to when required evidence was recorded and somehow, it did not infringe fundamental rights of petitioner in any way particularly in the context that accused was attached to and part of Pakistan Air Force was not denied at any stage---High Court under Art. 199(3) of the Constitution could not interfere in the matter of a person who was subject to Pakistan Military Laws being a member of Armed Forces---High Court declined to interfere in jurisdiction assumed by Pakistan Air Force---Petition was dismissed, in circumstances.

Amanullah v. Station House Officer and others PLD 2012 Lah. 194 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 rel.

Umer Farooq Khan for Petitioner.

Azizullah Burioro, DAG and Zafar Ahmed Khan, Additional P.G. for Respondents

Date of hearing: 16th April, 2015.

2016 P Cr. L J 166

[Sindh]

Before Syed Muhammad Farooq Shah, J

NOOR HASSAN---Applicant

Versus

ABDULLAH and 4 others---Respondents

Cr. Transfer Application No.S-13 of 2014, Criminal Misc. Application Nos. 812, 813, 814 of 2013 and C.P. No. S-3450 of 2013, decided on 24th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2) & (5)---Penal Code (XLV of 1860), Ss. 354-A, 365-B, 376 & 452---Assault or use of criminal force to woman and stripping her of her clothes, kidnapping, rape and house-trespass after preparation for hurt, assault or wrongful restraint---Bail, cancellation of---Case of further inquiry---Assessment of evidence---Principle---Accused were police officials who alleged to have kidnapped minor sisters of complainant and raped one of them while rape was attempted upon the other---Trial Court released accused persons on bail on the ground that there were discrepancies in statements of both the girls which were contradictory to medico legal report---Validity---To decide fate of bail application, tentative assessment of material available on record was to be considered but it did not mean that Trial Court to find out discrepancies of minor nature, while considering ground of further inquiry into the guilt of accused---Offence against which accused were charged was of heinous nature---On tentative assessment of evidence it was not possible to hold that case would fall within the scope of further inquiry---Every hypothetical question which could be imagined would not make it a case of further inquiry, simply for the reason that the same could be determined after evaluation of evidence---No sufficient grounds existed for further inquiry into the guilt of accused with which they were charged---Some contradictions in between ocular and medical evidence were noticed, which could not be considered prior to recording of evidence, moreso with regard to heinous offence which fell within the purview of prohibitory clause of S. 497, Cr.P.C.---Bail was cancelled, in circumstances.

Shoukat alias Shafqatullah v. The State PLD 2012 Sindh 174; Muhammad Ramzan v. The State and others 2012 MLD 579; Muhammad Ramzan v. The State and another 2011 YLR 1569; Abdul Ghafoor v. The State and another 2012 MLD 142; Haji Ahmad v. The State 1975 SCMR 69 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

Rasool Bux I. Siyal for Applicant (in Cr. Transfer Application No. 13 of 2014 and in Cr. Misc. Applications Nos. 812, 813 and 814 of 2013 and C.P. No. S-3450 of 2013).

Alam Sher Bozdar for Respondents (in Cr. Transfer Application No. 13 of 2014 and in Cr. Misc. Applications Nos.812, 813 and 814 of 2013).

Ghulam Shabir Dayo for Respondents (in C.P. No. S-3450 of 2013).

Zulfiqar Ali Jatoi, DPG for the State.

Shahabuddin Shaikh, State counsel (in C.P. No. S-3450 of 2013).

Date of hearing: 13th April, 2015.

2016 P Cr. L J 187

[Sindh]

Before Shahab Sarki, J

HAZARO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-36 of 2014, decided on 3rd April, 2015.

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

----Ss. 324, 353, 368, 371-A, 147, 148 & 149---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, wrongfully concealing or keeping in confinement, kidnapped or abducted person, selling person for purpose of prostitution etc., rioting, common object---Appreciation of evidence---Benefit of doubt---Neither any injury had been caused to the Police personnel, nor any of their vehicle was shown to have been damaged---General allegations were of firing against accused persons, and no specific and overt act had been attributed to accused---Police though had already recovered the empties from the place of incident, but since no recovery of any weapon had been made from accused, it could not be said that he made firing or not---Police Officials had also not produced any evidence with reference to ammunition, which was issued to them, and which was accounted for---Case of prosecution, on that count, was doubtful---When the statements of alleged victim ladies were recorded, accused was not available---No cross-examination, therefore, could take place---Prime evidence, had not been produced before the court in the shape of three alleged victim ladies, allegedly recovered---Prosecution, in circumstances, had failed to connect accused with the commission of offence under Ss.368 & 371-A, P.P.C.---Evidence of the Police Officials was not sufficient to entail conviction of accused---No serious efforts were made for procuring the attendance and consequent deposition of said ladies---Bailable warrants issued on few dates, returned unserved---Prosecution, in circumstances, had failed to establish its case against accused---Impugned judgment was set aside, accused was acquitted and released in circumstances.

Abdul Rasheed and others v. The State 1994 PCr.LJ 1765; Jaffar Iqbal and others v. The State 1993 PCr.LJ 1749; Rizwanullah v. The State PLD 2005 Pesh. 204; Muhammad Arif v. The State 2006 PCr.LJ 1827; Gul Muhammad v. The State NLR 1980 AC 190 and Salehon v. The State 1971 PCr.LJ 224 ref.

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

----S. 164---Statement made under S.164, Cr.P.C.---Scope---Statement under S.164, Cr.P.C., was not a substantive piece of evidence, until and unless, the maker of the said statement was confronted by the defence during trial.

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

----Ss. 368 & 371-A---Qanun-e-Shahadat (10 of 1984), Art.47---Wrongfully concealing or keeping in confinement kidnapped or abducted person, selling person for purpose of prostitution, etc.---Appreciation of evidence---Evidence given by a witness in judicial proceedings, relevancy of---When the statements of the alleged victim ladies were recorded, accused being not available, no cross-examination could take place---Article 47 of Qanun-e-Shahadat, 1984 provided a situation wherein the evidence given by witness in judicial proceedings, would be relevant for the purpose of proving the stated fact---One of the provisos to Art.47 of Qanun-e-Shahadat, 1984, which controlled the relevancy and admission of the evidence, was that the party against whom the said statement was being made, should be provided an opportunity for cross-examination, which, in the present case, was not available---Prosecution was duty bound to produce its best evidence before the courts; and where no right of cross-examination had been provided to an accused, then it would be deemed that prejudice had been caused to him---Prosecution had to establish its case beyond any shadow of doubt and to put its best evidence forward.

Ali Ahmed Khan for Appellant.

Zulifquar Ali Jatoi, DPG for the State.

Date of hearing: 20th March, 2015.

2016 P Cr. L J 197

[Sindh]

Before Nazar Akbar, J

ALI GUL---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-62 of 2013, decided on 5th May, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 265-F (3), 493 & 540---Constitution of Pakistan, Art. 10A---Additional witnesses---Complainant's counsel---Status---Due process of law---During trial, application was filed on behalf of complainant to summon two persons as prosecution witnesses, who were not included in calendar of witnesses---Application filed by complainant was dismissed by Trial Court---Validity---Witnesses who were not named in Challan could not be introduced by complainant unless their evidence would appear to Trial Court essential for the just decision of the case---Counsel for complainant could only assist prosecution and while producing their own witnesses independently, complainant stepped out of the position of assisting the prosecution---Order passed by Trial Court covered provisions of S. 265-F(3), Cr.P.C.---Without a gist of evidence of prosecution witnesses recorded by Investigating Officer under S. 161, Cr.P.C. provided to opposite side, examination of such witnesses by court at the instance of complainant would be violation of Art. 10A of the Constitution---High Court declined to interfere in the order passed by Trial Court---Revision was dismissed in circumstances.

Shahbaz Masih v. The State 2007 SCMR 1631 and Abdul Khaliq v. Abdul Malik and 7 others 2006 YLR 3106 ref.

Sobhraj L.P. for Applicant.

Noorullah Rind for Accused.

Khadim Hussain Khooharo, DPG for the State.

2016 P Cr. L J 207

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD ZAFAR---Applicant

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE-8, HYDERABAD and 2 others---Respondents

Criminal Misc. Application No. S-677 of 2014, decided on 13th May, 2015.

Penal Code (XLV of 1860)---

----S. 376---Criminal Procedure Code (V of 1898), Ss. 173 & 561-A---Rape---Deficient evidence---Report of Investigating Officer---Magistrate directed Investigating Officer to submit final report under S. 173, Cr.P.C. and declined the report under 'C' class filed by Investigating Officer---Validity---No witness of incident was available to corroborate allegations levelled by victim---Even after regaining her senses, victim neither resisted accused nor raised any hue and cry to attract family members or neighbours for her help---Victim also did not raise any protest before her mother-in-law or father-in-law but silently left her house and reached at the house of her father i.e. complainant---In entire scenario, husband of victim remained absent and there was no mention about his presence during the night of alleged incident and even in subsequent events which also formed adverse inference---In statement recorded under S. 164, Cr.P.C. victim did not mention date of offence and chemical examiner report and final medical report did not support allegations of Zina levelled by victim lady---Neither swabs taken were found to be stained with semen nor victim was recently sexually assaulted and even there were no marks of violence on her body---Commission of Zina upon victim could not be proved against accused---Magistrate was not bound to agree with report submitted by Investigating Officer under S. 173, Cr.P.C. and was empowered to disagree or discard the report submitted by Investigating Officer, however, it was incumbent upon Magistrate to examine all material facts, circumstances and documents placed by Investigating Officer along with report judiciously and there should be sufficient reasons to decline such report---Order passed by Magistrate was based on non-appreciation of relevant material which was against the spirit of settled law---High Court set aside the order passed by Magistrate having no legal substance---Report submitted by Investigating Officer under class 'C' was approved by High Court---Application was allowed in circumstances.

Ghulam Shabbir and 2 others v. The State 2003 SCMR 663 and Muhammad Younas v. The State 1992 SCMR 1592 ref.

Shabeer Hussain Memon for Applicant.

Muhammad Nadeem Tagar for the Complainant.

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

Date of hearing: 13th May, 2015.

2016 P Cr. L J 216

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD SHAREEF---Applicant

Versus

The STATE and 6 others---Respondents

Criminal Transfer Application No.24 of 2015, decided on 2nd June, 2015.

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

----S. 28---Criminal Procedure Code (V of 1898), Ss.526 & 561-A---Transfer of case, application for---Applicant/complainant, had sought transfer of special case from the Anti-Terrorism Court "Kha" to any Anti-Terrorism Court at "Kar"---Earlier, such application was dismissed by the Chief Justice of High Court, which order had attained finality as neither review or rectification of said order, was sought, nor was challenged before apex Court---Section 28 of Anti-Terrorism Act, 1997 empowered High Court to transfer any case from one Anti-Terrorism Court to another Anti-Terrorism Court, if in the interest of justice, or where the convenience, or safety of the witnesses, or the safety of accused so required---Under both S.526, Cr.P.C. and S.28 of the Anti-Terrorism Act, 1997, a case from one Anti-Terrorism Court to another such court, could be transferred, if there was reasonable apprehension that the court concerned was not fairly and impartially conducting in the matter which was a paramount consideration---Mistrust or lack of confidence, had not been specifically asserted against the Judge of Anti-Terrorism Court at "Kha"---Apprehension, or danger to the life of applicant/complainant would hardly be a ground of transfer of the case, as Law Enforcing Agencies, were legally and constitutionally required to maintain law and order, and provide necessary legal protection of life, honour and property to all the citizens, without discrimination---On the contrary, grave inconvenience would be caused to accused persons, as well as to the prosecution witnesses to attend the court at "Kar" on date of hearing, as they had to come from far away place---In view of peculiar facts and circumstances, it would not be expedient in the interest of justice and for the convenience or safety of the witnesses, or accused to transfer the cases pending before the Anti-Terrorism Court at "Kha" to Anti-Terrorism Court at "Kar"---Application for transfer of case, was dismissed, in circumstances.

Abid S. Zuberi, Haseeb Jamali and Rashid Ashraf Mughal for Applicant.

Usman Tufail Shaikh for Respondents Nos.2, 3 and 5.

Qurban Ali Malano for Respondent No.4.

Zamir Ghumro and Malik Altaf Javed for Respondents Nos.6 and 7.

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

Date of hearing: 20th May, 2015.

2016 P Cr. L J 240

[Sindh]

Before Salahuddin Panhwar, J

ABDUL HAMEED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-58 of 2003, decided on 11th February, 2015.

(a) Criminal trial---

----Last-seen evidence---Scope---Complainant contended that he had last seen the deceased with the accused in his sugarcane fields---Complainant had seen the deceased in the land, which is only adjacent to the accused's sugarcane fields and he had not seen the deceased with the accused or vice versa---Accused was cutting grass in his field, which is quite natural and the same could not be alleged as to be something out of routine--- Seeing one doing his routine work could not be taken as something drawing adverse interference required to raise a criminal charge---"Last seen" in most general sense in criminal administration of justice should be giving a "sense/impression of having seen the deceased last in the company of the accused".

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

----Art. 19---Circumstantial evidence---Scope---When any case rested entirely upon circumstantial evidence, then each piece of such evidence collected must provide all links making out one straight chain, where one end its nose fitted in the neck of the accused and other end touched the dead body---Any link missing from the chain would disconnect and break the whole chain and consequently conviction could not be safely recorded specially if was on a capital charge.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Place of recovery of dead body, being an agricultural land, where one could easily enter, was not a place which could be qualified as a place in absolute possession of accused---Motive was one of the links belonging to such straight chain which prosecution had to prove---Recovery of sickle had been from an open place, which could not be claimed to be in exclusive and absolute control of accused--- Medical evidence could only describe the nature of injuries or kind of weapon but could not describe the culprit---Mere suspicion, however strong it may be, could not take the place of evidence or could not hold the conviction by standing alone in isolation---Single doubt if created in the prosecution case, benefit of the same to go to accused---Accused was acquitted.

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

----S. 164--- Extra-judicial confession--- Scope--- Extra-judicial confession could not be considered sufficient for recording conviction specially on a capital charge unless it was strongly corroborated by tangible evidence coming from an unimpeachable source.

(e) Administration of justice---

----Criminal trial---Conviction---Benefit of doubt---Scope---"Justice" shall not stand defined unless at the end of the day truth was not found because justice was not meant to follow the dotted line(s) of prosecution or defence but was the name of finding the truth---Court could never swipe off a tear that fell from an eye of a victim and similarly nor it could bring a single moment of liberty back for which an accused otherwise was entitled---Court should hold the scale of justice strongly without being influenced with sorrow of victim or heinousness of an allegation---Conviction shall never over-weigh the scale of acquittal (benefit of doubt) unless all reasons of law and judicial logics deny such acquittal because whole criminal administration of justice revolves around the principle of benefit of doubt---Till determination of guilt, an accused continues with presumption of him being innocent---Benefit of doubt fulfilled its meaning only when was kept in mind that it was better to acquit ten guilty in place of convicting an innocent.

2006 SCMR 231; 1996 SCMR 188; 2005 SCMR 277; 2010 PCr.LJ 1750; 2009 PCr.LJ 894; 2002 SCMR 441; 2010 PCr.LJ 1730; 2010 YLR 914; PLD 2008 SC 298; 2013 YLR 2734; 2012 MLD 466; 2009 SCMR 120 and 2008 SCMR 1064 ref.

Fazal Elahi v. The Crown PLD 1953 FC 214; Muhammad Fayyaz v. The State PLD 1984 SC 455 and MD Nazir Hossain Sarkar v. The State 1969 SCMR 388 rel.

Miss Aliya Sehar for Appellant.

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

Date of hearing: 11th February, 2015.

2016 P Cr. L J 265

[Sindh]

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

FAROOQ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-32 of 2012, decided on 1st April, 2015.

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

----Ss. 6, 9(c) & 25---Qanun-e-Shahadat (10 of 1984), Art. 40---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---All three prosecution witnesses, who were Police Officials, had fully supported the prosecution case---Said witnesses, had been cross-examined at considerable length, but no discrepancy causing reasonable doubt in the veracity of prosecution case was found---Evidence of prosecution witnesses, over the recovery of narcotic substance from the house in question had not been shattered to such extent that conviction and sentence awarded to accused, could be declared illegal and set aside---Minor variations, though did occur in the evidence of witnesses, but no contradictions worth giving benefit of reasonable doubt to accused existed---Plea of false implication of accused at the instance of DSP, against whom accused had moved application for registration of FIRs, could not be given much weight, as said DSP was neither the witness, nor had conducted any investigation in the case---Said DSP had not played any part to contrive things against accused---Nothing concrete to suggest false implication of accused at the hands of said DSP, was found on record---SHO concerned had submitted criminal record of showing as many as 20 criminal cases of different kinds registered at various Police Stations against accused and his brothers---Objection of accused over the territorial jurisdiction of Police Station to register the case against accused, was also without any merits---Accused was aware of the nature, and exact time and date of incident reported against him---Stringent compliance of S.103, Cr.P.C., had been dispensed with in terms of S.25 of Control of Narcotic Substances Act, 1997---People fearing for their life, did not come forward to give evidence against drug barons---Information disclosed by accused led to discovery of narcotic substance, was relevant as per scheme of Art.40 of Qanun-e-Shahadat, 1984 and could be relied upon---Prosecution case was about recovery of 7 packets of charas, each having rods and each weighing 1250 grams---Out of those 7 packets, one packet individually consisting 100 rods, was separated, sealed and subsequently sent for examination to Chemical Expert, the report of which had come in positive---Regarding 6 remaining packets, the prosecution could not bring any evidence to establish the same to be narcotic substance punishable under Control of Narcotic Substances Act, 1997---Prosecution was bound to take sample from every packet for examination to prove it to be narcotic substance---Accused, was liable for possessing 1250 grams of charas and 1000 grams of heroin---Conviction and sentence for possessing charas exceeding 1 Kilogram and upto 2 Kilograms was R.I. for 4 years, 6 months, and fine of Rs.20,000 in default S.I. for 6 months, and for possessing heroin exceeding 600 grams and upto 1000 grams, the sentence of R.I. for one year, 10 months and fine of Rs. 150,000 in default S.I. for 5 months---Same punishment for accused, would meet the ends of justice---Accused had served sentence of 6 years, 11 months and 14 days, and had earned remission of 2 years, 1 month and 19 days---Conviction and sentence of 10 years and fine of Rs.500,000 awarded to accused, was modified to the period already undergone by him, in circumstances.

Ameer Zeb's case PLD 2012 SC 380 and Ghulam Murtaza's case PLD 2009 Lah. 362 ref.

Syed Zakir Hussain for Appellant.

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

Date of hearing: 25th March, 2015.

2016 P Cr. L J 290

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

SOOBO---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. D-118 along with D-119, Criminal Jail Appeal No. D-120 and M.A. No. 4644 of 2011, decided on 11th May, 2015.

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

----Ss. 365-A, 324 & 353---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 32---Criminal Procedure Code (V of 1898), Ss. 265-C, 537 & 161---Kidnapping or abduction for extorting property valuable security etc., assault or criminal force to deter public servant from discharge of his duty and attempt to commit qatl-i-amd---Non-supply of statement and documents to accused---Effect---Finding or sentence when reversible by reason of error or omission in charge or other proceedings---Principles---Overriding effect of Anti-Terrorism Act, 1997---Accused were convicted and sentenced by Trial Court---Accused contended that Trial Court had not complied with requirements of S. 265-C, Cr.P.C. as copies of statements of witnesses recorded under S. 161, Cr.P.C. had not been provided to accused at time of trial and that accused had been seriously prejudiced due to such non-compliance---Complainant took plea that Anti-Terrorism Act, 1997 was a special law and under S. 32 thereof, it had overriding effect on general laws---Validity---Under S. 32 of Anti-Terrorism Act, 1997, provisions of Cr.P.C. would, so far as they were not inconsistent with provisions of Anti-Terrorism Act, 1997, apply to proceedings before special court---Provisions of S. 265-C, Cr.P.C. were not inconsistent with provisions of Anti-Terrorism Act, 1997, thus the same were fully applicable to proceedings before Anti-Terrorism Court---As per impugned judgment, copies of statement had been provided to accused as required under S. 265-C, Cr.P.C., but their corresponding exhibits were not available on record---Accused had examined all prosecution witnesses minutely and extensively---Accused had neither raised any objection nor moved application for supply of copies at any stage of trial---Right from framing of charge, accused were aware of case against them and had amply opportunity to prepare their defence---When accused had consciously undergone trial and contested the same vigorously and had every opportunity to insist for supply of copies but he chose to remain silent, then question of prejudice did not arise and trial would not be deemed to have been vitiated---Provisions of S. 537, Cr.P.C. were mandatory in nature and High Court could not interfere without coming to conclusion that there had been substantial error or failure of justice, due to any irregularity, during course of tiral---Even if copies of statement under S. 161, Cr.P.C. had not been provided to accused, court had to determine if any failure of justice had occasioned or any prejudice had been caused to accused---Accused failed to point out any prejudice which had been caused to them---No failure of justice had been occasioned in given circumstances of the case---Procedural irregularity pointed out by accused was covered under S. 537 Explanation, Cr.P.C. and trial was therefore not vitiated---Objection as to non-supply of copies of statements was overruled.

Hakamuddin v. The State and others 2005 YLR 2032; Abdul Jabbar v. The State 2011 YLR 2169; Nadeem Ahmed Unar and others v. The State 2007 PCr.LJ 233; Mst. Nusrat Mian and another v. The State 1997 MLD 2869; Naveed Asif v. The State PLD 1988 SC 99 and Muhammad Riaz and another v. The State PLD 2003 Lah. 290 distinguished.

The State v. Anees Bawani and others 2000 PCr.LJ 1418; Rehmat Ali v. The State 1986 SCMR 446; Abdul Rehman and others v. The State and others PLD 1968 Lah. 514 and Abdul Subhan and others v. The State 1968 PCr.LJ 263 ref.

Rehmat Ali v. The State 1986 SCMR 446 rel.

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

----Ss. 265-C, 161 & 537---Non-supply of copies of statement of S. 161, Cr.P.C.---Effect---If copies of statement under S. 161, Cr.P.C. have not been provided to accused, court has to determine as to whether any failure of justice has been occasioned or any prejudice has been caused to the accused.

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

----S. 537---Scope---Provisions of S. 537, Cr.P.C. are mandatory in nature and High Court cannot interfere without coming to conclusion that there has been substantial error or failure of justice, due to any irregularity, during course of trial.

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

----S. 32---Overriding effect of Anti-Terrorism Act, 1997---Principles---Under S. 32 of Anti-Terrorism Act, 1997, provisions of Cr.P.C. will, so far as they are not inconsistent with provisions of Anti-Terrorism Act, 1997, apply to proceedings before Special Court.

A. R. Farooq Pirzada and Rukhsar Ahmed Junejo for Appellants.

Zulfiqar Ali Jatoi, DPG for the State.

Date of hearing: 5th March, 2015.

2016 P Cr. L J 305

[Sindh]

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

MUHAMMAD ASLAM---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Chairman and others---Respondents

Constitutional Petition No. D-4970 of 2013, decided on 15th April, 2015.

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

----Ss. 9 & 10---Criminal Procedure Code (V of 1898), Ss. 249-A, 265-K & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Power of Magistrate or court to acquit accused at any stage---Inherent powers of High Court---Reference by National Accountability Bureau was filed against accused and others on basis of enquiry report prepared by Securities and Exchange Commission of Pakistan---Accused, a surgeon, along with others, during investigation, was alleged to have indulged in fraud of huge amount of money belonging to investors and certain amount of money was alleged to have been deposited into Bank account of accused with regard to same fraud---Accused sought quashment of said reference and safeguard against any coercive action including placing his name on Exit Control List---High Court, under its inherent jurisdiction, could quash proceedings in exceptional cases without waiting for trial court to invoke powers either under S. 249-A or 265-K of Cr.P.C. if facts of case so justified---Serious intricate questions of facts had been proposed by prosecution for trial which needed to be thoroughly enquired by trial court by giving proper opportunity to prosecution---Release of accused, without such exercise, could amount to pre judge his guilt, which, under no law, could be rationalized---Investigation conducted by National Accountability Bureau had found material showing the involvement of accused in the case---Trial court had taken cognizance of the offence on reference which had been submitted on basis of said investigation--¬-Accused could seek remedy of his premature acquittal in terms of S. 249-A or 265-K, Cr.P.C. to avoid rigors of trial--- High Court, while acting under Constitutional jurisdiction conferred under Art. 199 of Constitution, could not indulge in any exercise to thrash out disputed and complicated questions of facts--- Constitutional petition was dismissed in circumstances.

Mirag Khan v. Gul Ahmed and 3 others 2000 SCMR 122 ref.

Muhammad Shabbir v. The State of Islamic Republic of Pakistan 2005 SCMR 834 distinguished.

Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others 2011 SCMR 1813 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others PLD 2013 SC 401 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Disputed and complicated questions of facts, determination of---Permissibility---High Court, while acting under Constitutional jurisdiction conferred under Art. 199 of the Constitution, can not indulge in any exercise to thrash out disputed and complicated questions of facts.

Emadul Hassan for Petitioner.

Muhammad Siddique Soomro for Respondent No. 7.

Samiuddin, Law Officer for Respondent No.8.

Suleman Huda for Respondent No.9.

Fayyaz Ahmed for Respondent No.13.

Syed Muhammad Kazim for Respondent No.14.

Muhammad Khalid Hayat for Respondent No.15.

Ainuddin Khan, DAG and Muhammad Altaf, ADPG for NAB.

Date of hearing: 15th April, 2015.

2016 P Cr. L J 320

[Sindh]

Before Shahab Sarki, J

RAB NAWAZ---Applicant

Versus

The STATE and 5 others---Respondents

Criminal Revision Application No. S-61 of 2014, decided on 6th March, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Illegal dispossession---Contractual issues---Interim restoration of possession---Scope---Complainant was aggrieved of order passed by Trial Court refusing restoration of possession as interim measures during proceedings of complaint---Validity---Provisions of Illegal Dispossession Act, 2005, were promulgated to curb dispossession from immovable property, if made by a certain class of persons who were part of "land mafia"---Where contractual issues were involved, matter of possession/dispossession would come within the ambit of Civil Court---Report of revenue authorities regarding possession with respondents was reconfirmed by a legal notice issued by complainant's counsel---High Court declined to interfere in the order passed by Trial Court as there was no illegality or impropriety with the same---Revision was dismissed in circumstances.

Abdul Mujeeb Shaikh for Applicant.

Moulana Shehzado Dreho for Respondent.

Zulfiqar Ali Jatoi, DPG for the State.

Date of hearing: 23rd February, 2015.

2016 P Cr. L J 325

[Sindh]

Before Shahnawaz Tariq, J

KHUDA NAZAR---Applicant

Versus

DIRECTOR GENERAL INTELLIGENCE AND INVESTIGATION FEDERAL BOARD OF REVENUE, ISLAMABAD and 3 others---Respondents

Criminal M.A. No. 270 of 2014, decided on 5th March, 2015.

Customs Act (IV of 1969)---

----Ss. 2(s) & 156(89)--- Criminal Procedure Code (V of 1898), S.561-A---Smuggling of HSD oil by oil tanker---Application for quashing of FIR---Applicant's oil tanker loaded with 60,000 litres, was apprehended along with its drivers, who failed to produce the requisite valid documents on demand before the concerned Authority---Required notice was served upon the driver on the spot, and FIR was lodged accordingly---Applicant, had already been convicted for similar offence of smuggling by the court of Special Judge (Customs, Taxation and Anti-Smuggling)---Applicant, after submission of interim charge sheet, instead of approaching the Trial Court to agitate his plea of acquittal, had directly invoked jurisdiction of High Court for seeking quashing of FIR, alleging the same to be false and based on the ulterior motives of the complainant---Prosecution, should be provided with full opportunity to produce its evidence; and let the Trial Court thrash out the truth and applicant could place his plea of defence before the court during the course of trial---High Court, after submission of challan and taking cognizance by the concerned Trial Court, while exercising constitutional power under Art.199 of the Constitution, or S.561-A, Cr.P.C., not to quash the FIR, unless and until, there were exceptional circumstances involved---High Court declined to short circuit the normal procedure of trial as provided by the law, on the mere consideration of defence plea, without exhausting the available remedy for acquittal of accused by invoking the provisions of S.265-A or S.249-A, Cr.P.C.---Application for quashing of FIR being devoid of legal substance, stood dismissed, in circumstances.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Jan Ali Junejo for Applicant.

Kashif Nazeer, Special Prosecutor Custom for Respondents Nos.1 to 3.

Peer Riaz Muhammad, Standing Counsel for the State.

Date of hearing: 5th March, 2015.

2016 P Cr. L J 332

[Sindh]

Before Syed Muhammad Farooq Shah, J

STATE through Advocate-General Sindh---Appellant

Versus

ELAHI BUX---Respondent

Criminal Acquittal Appeals Nos. S-23 of 2002 and S-4 of 2003, heard on 12th March, 2015.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Appeal against acquittal---Scope---Reappraisal of evidence---Burden to prove the case, laid upon the prosecution, even if no defence plea was taken by accused---Accused, in the present case, had produced sufficient documentary evidence, which had shown that he was exonerated from the commission of alleged offence---Extraordinary remedy of appeal against acquittal, was quite different from an appeal preferred against the findings of conviction and sentence---Appellate jurisdiction under S. 417, Cr.P.C., could be exercised by High Court, if gross injustice had been done in the administration of criminal justice, more particularly where findings given by the Trial Court, were perverse, illegal and based on mis-reading of evidence, leading to miscarriage of justice, or where reasons advanced by the Trial Court, were wholly artificial---Scope of appeal against acquittal of accused, was considerably limited, because presumption of double innocence of accused was attached to the order of acquittal---Order of acquittal passed by the Trial Court in the present case, was based on correct appreciation of evidence, which would not warrant interference---Accused earned double presumption of innocence with the acquittal, first, initially that till found guilty he had to be considered innocent and second, that after acquittal by the Trial Court, further confirmed the presumption of innocence---Appellate Court by exercising its powers under S.417, Cr.P.C., could interfere only, if the order of acquittal was based on misreading, non-reading of evidence, or was speculative, artificial and foolish---Prosecution having failed to prove any case against accused, impugned judgment of Trial Court, which did not suffer any illegality, gross irregularity or infirmity, was maintained.

2002 SCMR 713; 2012 PCr.LJ 1699; 2013 YLR 223; 2011 PCr.LJ 1234; 2013 PCr.LJ 374; 2013 PCr.LJ 345 and PLJ 2009 FSC 284 ref.

A.R. Kolachi, A.P.G. for the State (in Criminal Appeal No. 23 of 2002).

Irshad Ahmed Channa, Deputy Director Agricultural Extension Sukkur for Appellant (in Criminal Appeal No. 4 of 2003).

Respondent in person.

Date of hearing: 12th March, 2015.

2016 P Cr. L J 366

[Sindh]

Before Shahnawaz Tariq, J

GUL MUHAMMAD---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No. 118 of 2014, decided on 29th January, 2015.

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

----Ss. 3, 4, 5 & 7---Dispossession from property---Complaint---Applicant had impugned order of the Trial Court, whereby he was ordered to deliver the possession of subject property to complainant/respondent---Complainant had claimed ownership over subject property on the strength of sub-power-of-attorney executed by the attorney of original allottee of the property---Applicant/alleged dispossessor, was in possession of the subject property, who had let out the same to the tenants for many years---Complainant was never in possession of the property, after execution of alleged power-of-attorney in his favour and had not disclosed the specific date and time of his alleged dispossession by the applicant from the subject property---Complainant had failed to produce the title documents of the property in his name, but had tried to build the premise of his case on the mere strength of alleged power-of-attorney---Charge against the applicant had not been framed which was a mandatory condition to pass any interim order under S.7(1) of Illegal Dispossession Act, 2005---Trial Court, had neither considered the question of title of the complainant over the property in dispute, nor afforded an opportunity to the applicant to clarify the allegations levelled by the complainant by producing oral as well as documentary evidence in his defence---Impugned order was not in consonance with the provisions of S.7(1) of Illegal Dispossession Act, 2005---For appropriate conclusion of the controversy, recording of evidence of both the parties, was essential, but same had not been done in the case---Impugned order passed by the Trial Court before framing the charge against applicant and recording evidence of the parties, was purely at the premature stage, which was not sustainable under the law---Authorities had not delivered the possession of subject property to original allottee, the attorney, the sub-attorney and special attorney---Complainant, in circumstances, had failed to prove his claim in respect of property in question on the basis of alleged power of attorney---Impugned order passed by the Trial Court being contrary to the facts as well as law, was recalled---Revision application was allowed, with direction to the Trial Court to decide the subject complaint on merits after framing the charge, and recording the evidence of the parties.

PLD 2009 SC 404; PLD 2011 Lah. 340; 2013 PCr.LJ 957; 2010 MLD 523 and 2010 PCr.LJ 422 ref.

(b) Words and phrases---

----'Prima facie'---Connotation.

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

----S. 5---Criminal Procedure Code (V of 1898), S. 4(k)---Inquiry and trial---Object---Inquiry was the first step towards the commencement of the process of the judicial or quasi-judicial proceedings---Inquiry was conducted to collect the primary evidence in respect of an offence or allegations by the Poice Officer, or any other officer/person duly authorized by the Competent Authority; and on its completion a concluding report was to be submitted with its findings---While the trial was conducted by the court or Tribunal after submission of inquiry report---Trial would commence only after performance of certain steps, which were essential to proceed with the case---After a charge was framed against accused, the Public Prosecutor would open the proceedings of the case and produce oral evidence as well as documents in support of allegations, while accused was brought before the court, and after final hearing the trial was conducted, either in his conviction or acquittal.

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

----Preamble--- Purpose of promulgation of the Act--- Illegal Dispossession Act, 2005, had been promulgated to protect and provide legal shield to the lawful owners and occupiers of the immovable property from their illegal and forcible dispossession by land grabbers; and further to discourage the unauthorized and illegal occupants---Wisdom behind the scheme of said Act was to maintain and ensure the process of law---Provisions of Illegal Dispossession Act, 2005, would be invoked strictly in the cases where the illegal dispossession had been claimed by aggrieved person having legal title and valid possession over the subject immovable property---Spirit of said Act, was to curb the professionals and land mafia with iron hands.

Muhammad Riaz Abbasi for Applicant.

Muhammad Qadir Khan for Respondent No.2.

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

Date of hearing: 8th December, 2014.

2016 P Cr. L J 396

[Sindh]

Before Salahuddin Panhwar, J

ABDUL SATTAR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-205 of 2013, decided on 7th September, 2015.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 409, 467, 468, 471-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Bail before arrest, refusal of---Forgery for purpose of cheating; forgery of available security, will, etc.; criminal breach of trust by public servant or by banker, merchant or agent; common intention---Criminal misconduct---Plea that documentary evidence being in possession of prosecution---Relevancy at bail stage---Plea of mala fide, proof of---Accused, Ex-Town Municipal Officer, after his retirement, in collusion with others, had withdrawn certain public funds from bank illegally and without any authorization and misappropriated the same by way of forgery and fraud---Accused had not denied issuance of cheques and encashment of government money on strength thereof; hence, prima facie, no mala fide on part of the Investigating Agency existed to falsely involve the accused---Accused had also not denied his continuous dealing with financial affairs of Tehsil Municipal Administration (TMA) after his retirement, which, in no way, appeared to be authorized and legal---Accused, prima facie, as per collected evidence, appeared to be linked with commission of alleged offence---Mere plea of 'mala fide' or 'departmental intrigue' alone would not help accused for extraordinary concession of pre-arrest bail---High Court observed that court would not have power to grant pre-arrest bail, unless all conditions specified by Supreme Court, especially, the condition regarding mala fide, for allowing bail before arrest, were proved---Plea that documentary evidence was in possession of prosecution was not relevant in the present case, and the same would frustrate the very object and purpose of exercise of extra-ordinary concession of bail--- Accused had failed to establish any mala fide on part of the Investigating Agency or department intrigue; and they rather appeared to be prima facie linked with alleged offence of 'corruption' , which qualified the term 'misappropriation'---Accused, in given circumstances, were not entitled to extraordinary relief of pre-arrest bail---Bail application was dismissed accordingly.

Muhammad Rafique v. Muhammad Hanif and 2 others 1988 SCMR 1222; Ijaz Akhtar v. The State 1978 SCMR 64 and Saeed Ahmed v. The State 1996 SCMR 1132 distinguished.

1995 PCr.LJ 1361 and 2010 SCMR 1735 ref.

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

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

----S. 5(2) & Preamble----Criminal misconduct---High Court observed that 'corruption' in a civilized society is like a disease like cancer, which, if not detected in time, is surely to malign the polity of country leading to disastrous consequences---'Corruption' is now termed as 'Royal thievery', which affects not only an individual', but also the economy, and the same destroys cultural heritage---Crime of 'corruption' is to be considered as one of the serious problems and threats posed to stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and rule of law---One must keep distinction between an act of receiving money as 'consideration' for doing an illegal or legal act and the act which falls within meaning of corruption qualifying the term 'misappropriation'.

Safdar Ali G. Bhutto for Applicants.

Shahzado Saleem, A.P.G. along with I.O. Inspector Qazi Sharafuddin for the State.

2016 P Cr. L J 418

[Sindh]

Before Shahnawaz Tariq, J

NAJEEM KHAN---Applicant

Versus

The STATE and 5 others---Respondents

Criminal Revision Application No. S-209 of 2014, decided on 31st December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 182---Order of initiation of proceedings against complainant for lodging false FIR---Mandatory for Investigating Officer to conduct investigation by adopting all possible measures---Investigating Officer in the present case without conducting systematic investigation and obtaining tracking record had concluded that complainant had lodged a false FIR and was prepared to initiate legal proceedings against complainant under S. 182, Cr.P.C. which was utter violation of basic scheme of investigation---Investigating Officer was empowered to conclude process of investigation to be false and fabricated but prior to such conclusion, he must collect tangible evidence in support of his report---High Court set aside impugned order and directed Investigating Officer to conduct further investigation in accordance with law---Revision was disposed of, accordingly.

Mehmood-ul-Hassan for Applicant.

Shahid Ahmed Shaikh, A.P.G. along with I.O. ASI Ghulam Hyder Chandio for the State.

2016 P Cr. L J 432

[Sindh]

Before Naimatullah Phulpoto and Nazar Akbar, JJ

MUHAMMAD SALEH MALLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 233 of 2008, decided on 2nd April, 2015.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Contradictory statements---Benefit of doubt---Complainant stated that eight pieces of "charas", weighing 190 grams were recovered from the accused, out of which a single piece of 10 grams was sent for chemical examination and mashirnama was prepared by him in sunlight---During cross-examination complainant stated that he sent two pieces of charas for examination, and one of the mashir stated that the mashirnama was prepared by using the light from the headlight of the Police vehicle---Held, that "charas" was sent for chemical examination with a delay of 8 days and no plausible explanation was presented for such delay and in such circumstances no sanctity could be attached to a positive report from the chemical examiner---Charas was not kept at a safe place, chance of tampering/foisting of the case property could not be ruled out---Accused was arrested from the road but no private person of the locality was associated as mashir during the raid and if the private persons were involved during the raid, then chances/plea of false implication could have been negated---High Court observed that court should ensure that proceedings of recovery and seizure in narcotics cases should be made in transparent manner so as to protect citizens from high handedness of Police and to save them from the agony of uncalled for trials---Material contradictions existed in the prosecution case, and prosecution had failed to establish its case beyond reasonable doubt, therefore, accused was acquitted and appeal was allowed accordingly.

Amjad Ali v. The State 2012 SCMR 577 ref.

Muhammad Aslam v. The State 2011 SCMR 820 and Khalil Ahmed v. The State PLD 2008 Kar. 8 rel.

Jameel Ahmed Shah for Appellant.

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

Date of hearing: 31st March, 2015.

2016 P Cr. L J 451

[Sindh]

Before Hasan Feroz, J

MUHAMMAD ZAHID KHAN---Applicant

Versus

STATION HOUSE OFFICER, P.S. SOLDIER BAZAR, KARACHI EAST and another---Respondents

Criminal Misc. Application No. 295 of 2014, decided on 1st December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent powers of High Court---Scope---Application for registration of FIR---Scope---High Court under S.561-A, Cr.P.C., had ample powers to meet the ends of justice however said powers were to be exercised subject to law and not to bypass the express provisions of law and it be used to prevent the abuse of process of law---Such powers, being extraordinary in nature, were to be exercised in the circumstances when no other remedy under the law was available---Section 561-A, Cr.P.C., could not be used to override express provisions of law as a substitute to the available remedy to circumvent the normal course of law or to deviate from prescribed procedure of law which in all circumstances ought to take effect---In the present case record showed that inspite of direction of the Sessions Judge/Ex-officio Justice of Peace, no heed had been paid by the Police to furnish report as to the alleged incident---High Court remanded the matter to Sessions Judge/Ex-officio Justice of Peace with direction to pass appropriate order in accordance with law---Application was disposed of accordingly.

2013 PCr.LJ 449; 2013 PCr.LJ 117; 2013 PCr.LJ 100; PLD 2007 SC 539 and PLD 2005 Kar. 621 ref.

Irfan A. Usmani for Applicant.

Abrar Ali Khitchi, A.P.G. along with ASI Kashif, P.S. Mithadar and Mian Khan SIP PS Soldier Bazar for Respondents.

Date of hearing: 13th November, 2014.

2016 P Cr. L J 469

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD IRFAN and others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Applications Nos.129, 130 and 131 of 2015, heard on 24th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Prohibition (Enforcement) of Hadd Order (4 of 1979), Arts. 3 & 4--- Inherent Powers of High Court--- Second opinion/examination of seized chemical---Permissibility---Authorities seized two vehicles allegedly containing Ethyl Alcohol---Samples from the same were sent to Chemical Examiner, which were manually examined and were declared as Ethyl Alcohol---Accused contended that the chemical seized was Ethyl Acetate and not Ethyl Alcohol---Validity---No legal embargo existed in obtaining a second opinion specially when the applicants were ready to bear the required expenses and the same would not cause prejudice to the case of prosecution but on the contrary a second opinion would strengthen the allegations levelled by the prosecution against the accused, therefore it was incumbent upon court to adjudge all aspects of the controversy judiciously to remove clouds of doubt while disbursing the justice---Application under S. 561-A, Cr.P.C. was allowed accordingly.

Ghulam Shabbir Dayo, Kashif Hanif and Fayyaz Ahmed A. Soomro for Applicants.

Abdul Rehman Kolachi, APG along with Muhammad Urs Sial, Incharge Chemical Examiner and Najeeb ur Rahman, Excise Inspector for the State.

Date of hearing: 24th August, 2015.

2016 P Cr. L J 487

[Sindh]

Before Syed Muhammad Farooq Shah, J

KAZIM ALI---Appellant

Versus

LIAQUAT ALI and 7 others---Respondents

Criminal Acquittal Appeal No.S-6 of 2015, decided on 12th March, 2015.

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

----Ss. 447, 441, 337-H(2), 504, 506, 511, 148 & 149---Criminal Procedure Code (V of 1898), S. 417(2-A)---Punishment for criminal trespass, causing hurt by rash or negligent act, intentional insult with intent to provoke breach of the peace, criminal intimidation, attempt to commit offences, rioting, common object---Appeal against acquittal---Reappraisal of evidence---Trial Court in the impugned judgment had correctly observed that the complainant and his witnesses had failed to produce any convincing evidence, showing that accused had trespassed, into the land of complainant or remained there unlawfully---Complainant had stated that, after the incident, accused went away---Ingredients of S. 441, P.P.C., punishable under S. 447, P.P.C., were not attracted in circumstances---Accused persons did not cause any injury to complainant, or his witnesses, no empty was secured from the place of occurrence---Recovery of incriminating weapon, was not made by the Police from accused persons---Complainant side had failed to establish the commission of offence against accused persons by way of adducing unimpeachable evidence---Order of acquittal, passed by the Trial Court, which was based on correct appreciation of evidence, would not warrant interference in appeal---Accused had earned double presumption of innocence with the acquittal; firstly, that initially, till found guilty, accused had to be considered innocent; secondly, that after acquittal by the Trial Court, further confirmed the presumption of innocence---Appeal against acquittal having no merits, was dismissed, in circumstances.

2012 PCr.LJ 1699; 2013 YLR 223; 2011 PCr.LJ 1234; 2013 PCr.LJ 374; 2013 PCr.LJ 345 and PLJ 2009 FSC 284 ref.

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

----S. 417(2-A)---Appeal against acquittal---Scope and principles---Extraordinary remedy of an appeal against acquittal, was quite different from an appeal preferred against the findings of conviction and sentence---Appellate jurisdiction under S.417(2-A), Cr.P.C., could be exercised by High Court, if gross injustice had been done in the administration of criminal justice; more particularly, where, findings given by the Trial Court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice, or where reasons advanced by Trial Court were wholly artificial---Scope of appeal against acquittal of accused, was considerably limited, because presumption of double innocence of accused, was attracted to the order of acquittal---Principles for the appreciation of appeal against acquittal were; misreading of evidence; lack of consideration of material evidence; reception of evidence illegally; violation of legal provisions; jurisdictional defect; reliance placed on matters extraneous to the record; material witnesses for the prosecution were not recorded; acquittal order on the face of it, was contradictory; order of acquittal was passed without hearing the prosecution; acquittal was based upon reasons, which did not appeal to reasonable mind and that there was gross mis-statement appearing in the judgment under review---Appellate Court, by exercising its powers under S.417, Cr.P.C., could interfere only, if the order of acquittal was based on misreading, non-appraisal of evidence, or was speculative, artificial, arbitrary and foolish---Order of acquittal passed by the Trial Court, if was balanced and well reasoned, would hardly call for interference by High Court in appeal---Where main grounds on which Trial Court had based its acquittal order, were reasonable and plausible, and could not be entirely and effectively dislodged or demolished, High Court declined interference.

2002 SCMR 713; 2008 MLD 1007; 2002 MLD 293 and 2000 YLR 190 ref.

Zulfiqar Ali Lashari for Appellant.

A.R. Kolachi, A.P.G. for the State.

2016 P Cr. L J 508

[Sindh]

Before Sadiq Hussain Bhatti and Aftab Ahmed Gorar, JJ

MUHAMMAD YOUSAF---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-348 of 2011, decided on 2nd December, 2015.

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

----Ss. 9(c), 6, 7 & 8---Possession, import or export, trafficking or financing trafficking of narcotic drugs etc.---Appreciation of evidence---False implication/enmity, plea of---Two contradictory versions were advanced in defence plea---Twelve hundred kilograms of Charas was alleged to have been recovered from accused, while he was transporting the same through a trailer---Trial court convicted the accused and sentenced him to undergo imprisonment for life along with payment of fine---Complainant and Mashirs/recovery witnesses had corroborated their evidence with each other as well as to the recovery--- Accused had not shattered the said corroborative evidence---Chemical Examiner had certified the sample of the recovered Charas---Accused, while taking the plea of false implication, had advanced two (contradictory) versions in his defence, which were not supported by any documentary proof---Accused could not establish that the complainant, who belonged to other Province, had any enmity or motive to falsely implicate him---No reason existed to disbelieve the recovery of huge quantity of Charas---Prosecution had brought reliable, trustworthy and unimpeachable evidence without any discrepancy or cloud over the veracity of the prosecution story---Prosecution, thus, had proved the case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(b) Criminal Trial---

----Conviction, award of---Principles---Conviction can be awarded to an accused, only after reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story brought on record.

Miss Aliya Sehar Kaimkhani for Appellant.

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

Date of hearing: 2nd December, 2015.

2016 P Cr. L J 533

[Sindh]

Before Aftab Ahmed Gorar, J

The STATE through Prosecutor-General Sindh, Karachi---Applicant

Versus

RIAZ AHMED and 2 others---Respondents

Cr. Misc. Application No. S-400 of 2015, decided on 14th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 409, 420, 465, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, or by Bank, merchant or agent; cheating or dishonestly inducing delivery of property; forgery; forgery for purpose of cheating; using as genuine a forged document; falsification of accounts; common intention misconduct---Bail, cancellation of---Delay, inordinate and unexplained---Accused, public servants, were alleged to have misappropriated a huge amount of government funds, while they were executing public work orders for the Forest Department---FIR had been delayed for three to four years without plausible explanation---Nothing existed on record to show as to whether any complaint or inquiry was pending against the accused persons---Until and unless any cogent reason was brought on record, which connected the accused with commission of the alleged offences, the accused could not be kept behind bars for an indefinite period---Mere involvement of the accused in the alleged crime did not mean that they had committed the same---Accused were not alleged to have misused the concession of bail---Case had already been challaned and the accused were attending the trial court---Prosecution was free to bring cogent evidence to substantiate its claim against the accused before the trial court---Application for cancellation of bail was dismissed accordingly.

Syed Meeral Shah, Deputy Prosecutor-General, Sindh for Applicant.

Sarfraz Ali Metlo for Respondents.

Date of hearing: 14th December, 2015.

2016 P Cr. L J 549

[Sindh]

Before Naimatullah Phulpoto, J

SHAH BALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 222 of 2013, decided on 31st August, 2015.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---False implication, plea of---Interested witnesses---Present accused were alleged to have caught hold of deceased while he was being hit by main accused with hard and blunt substance---Principles as to proof and liability---Trial Court, convicting accused under S.302(b), P.P.C., sentenced them to life imprisonment---Main accused, who was alleged to have caused fatal blow to deceased, remained absconding---Medical evidence clearly proved that deceased died unnatural death, which remained unshaken and unchallenged---Prosecution witness-investigating officer had admitted that he had not secured any blood stained earth or hard blunt substance from place of occurrence as incident was old one---Present accused person had admittedly not caused any injury to the deceased---No evidence was available to the effect that at time of actual occurrence present accused had exchanged hot words with deceased, that they had shared common intention with main accused, and that their evidence was pre-concerted---Was unbelievable that present accused had caught hold of deceased, who was sixty-eight to seventy years of age---Material contradictions existed in statements of prosecution witnesses---Section 34, P.P.C. was not attracted to the present case---All prosecution witnesses were related to deceased and had given contradictory statements on material points---Conduct of prosecution witnesses was unnatural---Allegation of catching hold of deceased was very easy to level but very difficult to prove---Prosecution had failed to prove that present accused had shared common intention with principal absconding accused in commission of offence---False implication in background of matrimonial dispute could not be ruled out---Trial court failed to appreciate evidence according to settled principles of law---Benefit of doubt must go to accused---High court, setting aside conviction and sentence, acquitted both accused---Appeal was allowed in circumstance.

Muhammad Irshad and another v. The State 1999 SCMR 1030 and Akbar Ali v. The State 2007 SCMR 486 rel.

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

----Ss. 34, 33, 35, 36, 37 & 38---Common intention---Scope of S. 34, P.P.C.---Words 'act' or 'omission'---Act done by several persons in furtherance of common intention---Scope---When such an act is criminal by reason of its being done with criminal knowledge or intention---Effects caused partly by act and partly by omission---Co-operation by doing one of several acts constituting an offence---Person concerned in criminal act may be guilty of different offence---Section 34, P.P.C. declares a rule of criminal liability and does not itself create a distinct offence---In order to determine common intention, regard must be had not only to particular act but to all acts that are done---To comprehensibly understand scope of S. 34 of P.P.C., provisions of Ss.33, 35, 36 & 38, P.P.C. are to be kept in mind---Section 33 speaks about 'act'---Section 35 deals with an act, which is criminal only by reason of its being done with a criminal knowledge or intention---Section 36, P.P.C. speaks about effect caused partly by act and partly by omission---Section 37, P.P.C. relates to cooperation by doing one of several acts constituting an offence---Section 38, P.P.C. mentions about persons concerned in criminal act may be guilty of different offences.

(c) Criminal Trial---

----Benefit of doubt--- Principles--- Benefit of all favourable circumstances in prosecution evidence must go to accused regardless of whether he has taken any plea or not.

Akbar Ali v. The State 2007 SCMR 486 ref.

(d) Criminal Trial----

----Evidence---Proof---Evidence in case of capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attached to evidence of interested and partisan witness.

Mushtaq Ali and 2 others v. The State 1999 MLD 506 ref.

Ajab Khan Khattak for Appellants.

Abrar Ali Khichi, APG for the State.

Dates of hearing: 4th and 11th August, 2015.

2016 P Cr. L J 574

[Sindh]

Before Zafar Ahmed Rajput, J

GHULAM MUHAMMAD---Applicant

Versus

The STATE---Respondent

Cr. B. A. No. S-200 of 2014, decided on 4th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 51---Recovery of narcotic substance---Bail, refusal of---Charas weighing 43 kilograms was recovered from car in which accused was travelling---When case against accused was of further inquiry, the embargo contained in S. 497, Cr.P.C., barring bail to accused did not apply---On the same analogy bar contained in S. 51 of Control of Narcotic Substances Act, 1997, was not applicable in a case of possession and recovery of narcotics if evidence in possession of prosecution prima facie did not make out a case punishable with death---Provision of S. 25 of Control of Narcotic Substances Act, 1997, excluded application of S. 103, Cr.P.C. to searches made under Control of Narcotic Substances Act, 1997---In presence of a special law regarding search, general provisions would not prevail---Accused did not deny recovery of Charas from the car in possession of accused but pleaded that the same was recovered from the luggage of co-accused/passengers, such plea could only be determined at trial---Case of accused did not call for further inquiry as envisaged under S. 497(2), Cr.P.C.---Bail application was dismissed in circumstances.

Pervez alias Gidari v. The State 2013 PCr.LJ 635 and Ghulam Mustafa alias Mushtaq Ali v. The State 2013 PCr.LJ 860 ref.

Inayatullah Morio for Applicant.

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

Date of hearing: 4th November, 2015.

2016 P Cr. L J 584

[Sindh]

Before Shahnawaz Tariq, J

ISMAIL and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-143 of 2014, decided on 25th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 489-C & 34---Possessing of forged or counterfeit currency notes or Bank notes, common intention---Appreciation of evidence---Benefit of doubt---Neither there was any source of information regarding the possession of forged currency notes by accused persons, nor any complaint was made by any person against the accused persons---Neither the recovered forged notes were sealed at the spot, nor mashirnama of arrest and recovery was prepared at the place of wardat, which was violation of the settled norms of criminal administration of justice---Prosecution witnesses, had not deposed the numbers of recovered currency notes in their evidence---Complainant himself produced all the five currency notes by hand before Head Cashier of the Bank, who disclosed that said notes were forged---Neither the Manager of said Bank issued any letter of verification that the recovered notes were forged nor appeared in person before the Trial Court to corroborate the allegations levelled by the prosecution---Head Cashier was not an expert nor any person authorized by the competent authority had issued any certificate regarding the genuineness of the currency notes, as such, statement of Head Cashier could not be taken into consideration---Recovered notes, were not sent to State Bank for examination and report nor any expert was examined by the prosecution to testify that the notes secured from the possession of accused persons were forged or counterfeited---Police, in case of recovery, had to associate private persons as Mashirs, if they were available on the spot to maintain the transparency of the recovery, rather than to hire the Police personnel in that regard---Accused persons were arrested from thickly populated area, but complainant did not attempt to associate any private person on the spot to act as mashir of recovery---Prosecution had failed to produce any evidence on record to believe that accused were in the knowledge that said notes were forged or attempted to pass on the same to anybody else---Element of criminal mens rea was entirely missing, in circumstances---Mere possession of forged and counterfeited currency notes, did not constitute any offence---Onus lay on the prosecution to prove circumstances, which led clearly, undoubtedly and irresistibly to the inference that accused had the intention to foist the notes on the public---Such intention could be proved by collateral circumstances, such as that accused persons had planed before, or that they were in possession of similar notes in large number---Findings recorded by the Trial Court, were based on mere surmises and conjectures, and not on any solid and confidence inspiring evidence and conviction was based only on mere possession of said notes, without caring for the essential requirements of S.489-C, P.P.C., which was not sustainable under the law---Prosecution had failed to bring home the guilt of accused persons, while accused persons had succeeded to make out their case, as there were solid reasons to believe their plae of innocence---Any slightest doubt, if created in prosecution case, would be counted in favour of accused---Impugned judgment passed by the Trial Court was set aside, in circumstances.

Ashraf Mian v. The State 1989 PCr.LJ 1079; State v. Bashir and others PLD 1997 SC 408 and Hamid Yousif v. The State 2011 PCr.LJ 172 ref.

Syed Javed I. Bukhari for Appellants.

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

Date of hearing: 25th May, 2015.

2016 P Cr. L J 594

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

ALI AHMED---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU SINDH and another---Respondents

Constitutional Petition No.D-3032 of 2013, decided on 21st August, 2015.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Failure to fulfill payment obligation---Documentary and circumstantial evidence---Absconder---Scope---Accused along with his father was alleged to have taken money for the purpose of investing same in the New York Stock Exchange from complainant "A", following which an agreement/iqrarnama for return of money was executed between the accused and complainant "A"---Cheques of an amount of US$25,000 was issued to the complainant "A" from the accused, but the account from which those cheques were issued was closed---Complainant "S" alleged that he had given Rs. 10,145,000 to the accused for investment at a rate of 3% per month, out of which Rs.10,005,000 was still outstanding against the accused---Huge documentary evidence against the accused to connect him with the commission of offence was available, however, case of the accused's father was totally different as there was no evidence which directly linked the father with the principal accused and father was already in judicial custody as compared to principal accused who had absconded when the inquiry was started---Admission of accused's counsel of returning some amount to the concerned parties was an admission on the part of accused---Prima facie, there was sufficient evidence available on record to connect the accused in the commission of offence---Grant of bail before arrest was an extraordinary relief, granted in only extraordinary circumstances to protect innocent people against victimization---Pre-arrest bail could not be used as a substitute for post-arrest bail---No mala fide or ulterior motive on part of National Accountability Bureau was shown by the accused---Reasonable grounds for believing that accused had committed the alleged offence existed, therefore, interim pre-arrest bail already granted was recalled--- Constitutional petition was dismissed accordingly.

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

Muhammad Ishaq Memon for Petitioner.

Noor Muhammad Dayo ADPG NAB for Respondents.

2016 P Cr. L J 601

[Sindh]

Before Amer Raza Naqvi, J

MUHARRAM ALI and 3 others---Applicants

Versus

IZZAT ALI---Respondent

Criminal Revision Application No.S-71 of 2012, decided on 16th February, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202, 204, 265-K, 435, 439 & 561-A---Private complaint---Issuance of process---Accused were aggrieved of the order passed by Trial Court whereby process was issued against them---Validity---Although, in the order in question, Trial Court did not discuss in detail material placed before it, yet contents of complaint and also evidence of complainant recorded under S. 200, Cr.P.C. and of his witnesses recorded under S. 202, Cr.P.C. were referred in the order---Trial Court had perused such statements before passing of order in question and came to the conclusion that prima facie case was made out in favor of the complainant and the offence was cognizable---Trial Court admitted the complaint and issued bailable warrants against accused persons---Accused persons had ample opportunity to move any application under S. 265-K, Cr.P.C. in case they felt that there was no possibility of conviction in the matter, even if the evidence proposed to be produced in Court was so produced---Jurisdiction of High Court under S. 561-A, Cr.P.C. was discretionary one and was to be exercised to meet the ends of justice---Order passed by Trial Court caused no prejudice to accused persons as they were well aware of the allegations against them and were also accused in the case in which FIR was also registered in connection with the same incident and said case was also pending in the same Court--- Accused persons were not required to be heard before passing of order in question and they had ample opportunity to move an application under S. 265-K, Cr.P.C.---Revision was dismissed in circumstances.

2010 SCMR 105; PLD 1973 SC 236 and 2006 SCMR 1920 rel.

2004 PCr.LJ 304 ref.

Achar Khan Gabole for Applicants.

Syed Mushtaque Hussain Shah for Respondent.

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

2016 P Cr. L J 613

[Sindh]

Before Salahuddin Panhwar, J

Mst. YASMEEN SHAIKH---Petitioner

Versus

AYAZ PATHAN and others---Respondents

C.P. No.S-608 of 2015, decided on 8th October, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 174 & 176---Murder in police custody---Registration of criminal case---Scope---Son of the petitioner aged 15/16 years was nominated in the murder case; he was arrested by the Police; was detained at Police Station, where he was tortured---Son of the petitioner was denuded, whipped and mixture of water and "choona" was forcibly put in his mouth as a result he became unconscious, and subsequently he expired in Hospital---Deceased received injuries in custody of Police and he was referred to Hospital, where he died and postmortem was conducted---Proceedings under S.176, Cr.P.C., were not initiated---Station House Officer of Police Station was bound to record the statement of every informant, and once information, narrated or received by SHO and would spell commission of a cognizable offence, he was left with no discretion, but to incorporate the same into the book as prescribed under S. 154, Cr.P.C., which provision was mandatory in nature---Not the caste, colour, creed or position of accused, but the investigation/trial alone, which would dress an accused with clothes of innocence---Such was not done in the present case---Conduct of the Doctor and Police, was not up to the mark in the case---Even concerned Magistrate, was not approached, who otherwise was legally empowered to inquire into in such matters, as provided by S.176, Cr.P.C.---Such legal inquiry was deliberately avoided---Under peculiar circumstances of the present case, it was obligatory on the Police Officer-in-charge of Police Station; and even the Medical Officer to have informed to the concerned Magistrate for necessary inquiry, but that obligation was not fulfilled in the case---High Court observed that both the functionaries were required to be prosecuted for their negligence---High Court directed that Magistrate would proceed to conduct an inquiry within the scope of S.176, Cr.P.C., which would be in addition to the investigation into FIR ordered to be lodged---Constitutional petition was disposed with the observations that SHO would record statement of petitioner; if same would narrate ingredients of a cognizable offence, he would incorporate the same in the book provided under S.154, Cr.P.C.---If negligence of the Doctor was found with regard to Postmortem of the deceased, Director General Health Services, would be directed to constitute team for probe with regard to postmortem report---Order accordingly.

Mazhar Ali Bhutto for Petitioner.

Ghulam Dastgir A. Shahani for Respondent No.5.

Asif Ali Abdul Razak Soomro and Faiz Muhammad Larik for Respondents Nos.6 to 8.

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

2016 P Cr. L J 627

[Sindh]

Before Abdul Rasool Memon, J

ALI SHER and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.S-498, S-424 and S-1006 of 2014, decided on 31st July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 396 & 34---Dacoity with murder; common intention---Bail, grant/refusal of---Further inquiry---Identification parade---Plea of alibi---Recovery---FIR lodged against unknown persons, who were alleged to have caused death of deceased by firing at him while trying to snatch motorcycle from complainant and others---Present accused persons were later implicated during investigation through identification parade---Accused were although not nominated in FIR, but complainant, in clear terms, had stated that he and other eyewitnesses could identify the accused, as they had seen him while making fire upon deceased---Recovery of the motorcycle, used in the crime, had been made from said accused---Said accused had been produced for identification parade on the next day of his arrest, and complainant and eyewitnesses had properly identified him with specific role of causing straight fire on the deceased, which had proved fatal---Plea of alibi raised by the accused was subject to proof at trial---Sufficient and reasonable grounds, therefore, existed to believe involvement of the accused in present case---Bail was refused to said accused---Other two accused had been involved in present case after nineteen days of the incident, after further statement of complainant, which was without any source---Case of said accused, therefore, required further inquiry, as no specific role had been assigned to them---Bail application of main accused was rejected and those of the others were accepted accordingly.

Case-law referred.

Amjad Ali Sahito for Applicant (in Cr. B.A. No. S-498 of 2014).

Altaf Sachal Awan for Applicants (in Cr. B.A. No. S-424 and 1006 of 2014).

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

Date of hearing: 10th July, 2015.

2016 P Cr. L J 635

[Sindh]

Before Aqeel Ahmad Abbasi and Ghulam Qadir Laghari, JJ

MUHAMMAD SIDDIQUE---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Revision Application No. D-105 and M.As. Nos.4735, 4736 of 2015, decided on 5th November, 2015.

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

----Ss. 2, 6, 7 & 12---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 147, 148 & 149---Qatl-i-amd, rash or negligent act and rioting armed with deadly weapons---Act of terrorism---Jurisdiction of Trial Court---Complainant was aggrieved of order passed by Anti-Terrorism Court, who returned investigation report to file the same before Court of ordinary jurisdiction---Validity---Enmity existed between complainant party and accused over matrimonial affairs--- FIR showed that offence did not fall within the ambit of Ss. 2 & 6 of Anti-Terrorism Act, 1997---Order in question was passed on 24-5-2013, while revision was filed on 3-11-2015, after lapse of more than 28 months---Complainant was negligently careless and did not pursue case vigilantly---Order passed by Anti-Terrorism Court could not be assailed by filing revision petition but where some patent illegality or error was pointed out in the order passed by Anti-Terrorism Court, the same could be assailed by invoking Constitutional jurisdiction of High Court under Art. 199 of the Constitution, to such illegality--- High Court declined to interfere in the order passed by Anti-Terrorism Court---Revision was dismissed in circumstances.

Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195; The State through Advocate-General Sindh/Public Prosecutor, Karachi v. Shamshur Rehman alias Shamoo Dakoo alias Khalid 2000 YLR 902 and The State through Advocate-General, Sindh, Karachi v. Dr. Khalid Moin and 3 others 2000 YLR 2668 ref.

Ubedullah K. Ghotto for Applicant.

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

2016 P Cr. L J 643

[Sindh]

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

MANSOOR AHMED---Appellant

Versus

The STATE---Respondent

Crl. Accountability Appeal No.55 of 2002, decided on 21st November, 2015.

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

----S.9(a)(vi) & (x)---Misuse of authority and criminal breach of trust---Appreciation of evidence---Handing over of stock---Five officials of customs department were alleged to have committed theft of silver lying in customs warehouse and case against them was pending before Customs Court---National Accountability Bureau without getting the same transferred under S. 16-A, National Accountability Ordinance, 1999, filed a fresh reference against only three accused persons and remaining two accused were treated as prosecution witnesses---Trial Court convicted one accused and sentenced him to imprisonment for seven years, while remaining two were acquitted---Validity---Stock taking of warehouse was never done during a period, spreading over 21 years---Documents and stock taking report was also not prepared during investigation---Tenure of accused as Superintendent Preventive Services of warehouse was only for a short period of three months and for that period no separate audit or stock taking was held---Number of officers were posted in warehouse in question along with accused and all of them were sitting in the same hall and it was impossible to remove consignment from the warehouse in their presence---Neither evidence was appreciated nor law was followed in its true prospects by Trial Court---Not only glaring contradictions amongst depositions of prosecution witnesses existed but their evidence was not creditworthy as prosecution witnesses did not corroborate each other in stricto sensu---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 and Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and others 1994 SCMR 932 rel.

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

----S. 16-A---Transfer of case---Principle---Transfer of case under S.16-A of National Accountability Ordinance, 1999, is deemed to be a reference under S. 18 of National Accountability Ordinance, 1999---National Accountability Bureau cannot exonerate any person listed as accused.

Anti-Corruption Establishment, Punjab through its DG V/S v. National Accountability Bureau through Chairman NAB and others Civil Petition No. 1603 of 2012 rel.

Suhail Muzaffar for Appellant.

Muhammad Altaf, ADPG NAB for the State/NAB.

Date of hearing: 18th November, 2015.

2016 P Cr. L J 667

[Sindh]

Before Nadeem Akhtar and Naimatullah Phulpoto, JJ

NIZAMUDDIN alias NIZAM---Applicant

Versus

The STATE---Respondent

Crl. Misc. Application No.D-43 and M.A. No.6279 of 2014, decided on 5th March, 2015.

Criminal Procedure Code (V of 1898)---

----S. 540---Summoning of witness for cross-examination---Scope---Trial Court dismissed application filed by the accused to cross examine prosecution witness who was not cross examined by his counsel when examination-in-chief was recorded---Validity---Defence counsel refused to cross examine prosecution witness and services of State counsel were provided to the accused---Nothing was on record that defence counsel made request for adjournment on the ground that he was suffering from blood pressure and sugar on the relevant date---Nothing was on record that adjournment application moved by the defence counsel was declined by the Trial Court---Trial Court was bound to summon evidence of a material witness which was essential for just decision of the case---Court exercising power under S. 540, Cr.P.C. had to guard itself from exploitation when evidence was essential for a just decision---Delay in moving such application for summoning of witness was not relevant---Court itself was empowered even without application from any of the parties to summon witness when it was essential for just decision---Cross examination of witness was essential for just decision of the case---Trial Court was bound to allow defence counsel to cross examine the prosecution witness---Accused should not suffer for the fault if any of the defence counsel---Cross-examination on prosecution witness was a valuable right of accused---Court could determine truth or falsity of witness only through cross examination---Case of accused would be prejudiced in absence of cross examination on the prosecution witness---Impugned order was not sustainable under the law which was set aside---Trial Court should provide fair opportunity to cross-examine the prosecution witness--- Trial Court was directed to re-summon the prosecution witness for the purpose of cross-examination---If prosecution witness was not cross-examined by the defence counsel on the date fixed by the Trial Court then accused would not be given any other opportunity and case should be decided expeditiously--- Revision was allowed in circumstances.

Abdul Raoof v. The State PLD 2001 Lah. 463 and Mst. Aamna Bibi v. Kashif-ur-Rehman and another 1995 PCr.LJ 730 ref.

Shahbaz Ali Brohi for Applicant.

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

2016 P Cr. L J 683

[Sindh]

Before Naimatullah Phulpoto, J

HABIB alias GHAFFAR ABBA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.970 and M.As. Nos. 5735, 5408 of 2015, decided on 19th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Sindh Arms Act (V of 2013), Ss. 23(1)(a) & 3---Acquisition and possession of arms and ammunition without license---Further enquiry---Bail, grant of---Independent persons of locality not cited as mashirs/witnesses---.30 bore pistol was alleged to have been recovered from accused, while he had been arrested in main case registered under Ss. 353, 324 & 34, P.P.C.---Pistol without number and company name---Investigation was complete and accused was no more required for investigation---No efforts were made to call independent persons of locality---All mashirs were police officials, and there were no question of tampering with prosecution evidence---Accused had been in custody for about two months---Liberty of person could not be curtailed without legal justification---No case of like nature was pending against the accused---No progress had taken place in trial of the case---Court, while hearing bail, was not to keep in view the maximum sentence provided by the statute but the one which was likely to be entailed according to facts and circumstances of the case---Accused had already been granted bail in the main case---Present case, prima facie, required further enquiry---Bail application was allowed accordingly.

Jamaluddin alias Zubari Khan v. The State 2012 SCMR 573 rel.

Ibraheem v. The State 2014 YLR 2398 ref.

Muhammad Ali Waris Lari for Applicant.

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

2016 P Cr. L J 700

[Sindh]

Before Nazar Akbar, J

MUHAMMAD HAROON---Applicant

Versus

The STATE---Respondent

Cr. Revision Application No.46 of 2007, decided on 11th December, 2015.

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

----Ss. 345 & 299(e)---Penal Code (XLV of 1860), Ss. 324, 332(2)(a), (b), 333, 335, 337(2)(a) to (f) & 309---Attempt to commit qatl-i-amd---Compounding of offence---Diyat awarded for attempted qatl-i-amd of an insane, legality of---Diyat, refund of---Counsel directed to pay compensation to accused for their misconduct/criminal negligence---Trial court, allowing application for acceptance of compromise in terms of S. 345(2), Cr.P.C., directed the accused to deposit the share amount of Diyat of the injured/insane with the Nazir of the court before his release from judicial custody---Accused deposited the Diyat in High Court during pendency of present criminal revision---All family members of the injured/insane victim had entered into compromise with the accused with permission of the court---Neither S. 299(e), Cr.P.C. spoke of Diyat of injury or Diyat for injury to the injured nor S. 324, P.P.C. mentioned about payment of Diyat to the victim for attempt to qatl-i-amd---Since the victim had survived, the case against the accused was one of hurt caused by him---Direction of the trial court to deposit the share amount of Diyat of the injured with Nazir of the court was patently illegal and contrary to law---Reference to S. 309, P.P.C. by the trial court was not proper---Qisas was not applicable unless the injury caused by the accused fell under S. 332(2)(a) & (b), P.P.C.---Charge-sheet available on record did not refer to the offences for which punishment was provided under Ss. 333 & 335, P.P.C.---Case of prosecution in the FIR and the charge sheet was about causing injury/hurt on the head of the victim; therefore, the case of the accused fell under S. 337(2)(a) to (f), P.P.C., the provisions of which were compoundable under Sched. II of Cr.P.C.---Section 324, P.P.C. also did not impose any condition which could hamper the possibility of compromise in terms of S. 345(6), Cr.P.C. by the persons who, otherwise, were competent to compound the offence on behalf of an idiot or insane injured in terms of S. 345(4), Cr.P.C.---Question of Diyat did not arise under any circumstances in an offence under S.324, P.P.C. and the victim could himself compound the offence or in case of his disability to compound, any one on his behalf, could compound the offence in terms of S. 345(4), Cr.P.C.---Accused had erroneously paid the Diyat on the wrong advice and wilful negligence of his counsel--- High Court setting aside the impugned order, directed the refund of the Diyat to the accused and acquitted him; High Court also directed the counsel to pay compensation to the accused for his unnecessary vexation during present proceedings due to their misconduct/criminal negligence---Revision was allowed accordingly.

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

----S. 345----Penal Code (XLV of 1860), S. 324---Attempt to commit qatl-i-amd---Compounding of offence---Trial court had exclusive jurisdiction to determine validity of compromise---Impugned order being on an application for compromise was in the exclusive domain of trial court to see whether compromise was genuine or not---Counsel should have requested the Court to remand the case, as the compromise was supposed to be accepted by the trial court and not by the revisional court.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 41, 13 & 9---Misconduct---Punishment for---Functions of Provincial/Pakistan Bar Council---Scope---High Court, observed that disciplinary action be taken on misconduct, criminal negligence and inefficiency on part of advocates.

Samiullah Soomro for Applicant.

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

Date of hearing: 25th November, 2015.

2016 P Cr. L J 717

[Sindh]

Before Nazar Akbar, J

Sheikh MUHAMMAD SABIR---Applicant

Versus

The STATE---Respondent

Cr. Misc. Application No. 390 of 2014, decided on 26th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 561-A---Penal Code (XLV of 1860), Ss. 489-F & 420---Bail, cancellation of---Condonation as to appearance of accused during pendency of application for cancellation of bail---Inherent powers of High Court---Scope---Pre-arrest bail granted to accused was conditionally confirmed by Court of Session on basis of compromise between the parties, subject to payment of the amount mentioned in the dishonoured cheque in monthly instalments---Accused failed to make payments, on which the complainant filed application for cancellation of bail---Accused, instead of appearing before the court, filed application for condonation of his appearance for an indefinite period on medical grounds, which was dismissed by the court---In the garb of impugned order the accused had challenged the maintainability of the cancellation application---Question of jurisdiction had to be first raised before the Court, which had granted the bail---Grounds which had not been taken by the accused before the trial court, could not be examined by the High Court in exercise of inherent powers under S. 561-A, Cr.P.C. to interfere with the proceedings of the court below, as the same would amount to usurpation of power of the lower court---Accused, in such circumstances, before violating the bail order, should have filed application before the same court for modification of said order or breach of any undertaking by the complainant---Accused was guilty of violating the undertaking given by him before the court below for obtaining order of confirmation of bail---Accused was, thus, playing with the courts by unilaterally claiming that the complainant had not withdrawn the case--- Accused without exhausting said remedy had directly invoked the inherent jurisdiction of High Court, to obtain relief which had not been prayed before the Court of first instance---Accused had avoided to explain his position before the court below by abusing the process of the High Court under the cover of present proceedings for about eleven months---High Court, holding that the accused was to be put on notice as to why bail before arrest granted by the court below should not be cancelled on ground of violating the terms thereof, directed the accused, pending cancellation application, to comply with initial order for payment of monthly instalments by depositing the arrears of instalments with the Nazir of the High Court---Application under S. 561-A, Cr.P.C. was disposed of accordingly.

Rehman Ghous for Applicant.

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

Aijaz Ali Channa for the Complainant.

Date of hearing: 26th November, 2015.

2016 P Cr. L J 726

[Sindh]

Before Abdul Rasool Memon, J

SIRAJUDDIN---Appellant

Versus

ALLAH BUX and 2 others---Respondents

Cr. Acquittal Appeal No. S-18 of 2014 and M.A. No.3788 of 2015, decided on 10th November, 2015.

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

----S. 365-B---Criminal Procedure Code (V of 1898), Ss., 265-H(1) & 417---Kidnapping, abducting or inducing a woman to compel her for marriage etc.---Appeal against acquittal---Appreciation of evidence---Affidavits and Nikkahnama, produced and accepted as defence--- Accused were alleged to have abducted two sisters of complainant from his house---Trial Court had acquitted both the accused on basis of copies of free-will affidavits and Nikkahnama of alleged abductees and for the reasons that the evidence produced by prosecution contained major and material contradictions and that the same was not confidence inspiring---Statement of prosecution witnesses were contradictory as to presence of alleged eye-witnesses and abductees at place of occurrence at the relevant time---Statement of star witness was also contradictory--- Prosecution witness had not supported complainant's version---Said contradictions indicated that either those witnesses were not present together at time of alleged incident, or the incident had not occurred as alleged by prosecution---Prosecution case was not free of doubt---No positive material had been brought on record to reverse the acquittal judgment---Appeal was dismissed accordingly.

(b) Criminal trial--

----Documentary evidence, production of---Procedure---Any document produced through statement carries no evidentiary value unless the same is produced through a witness or in statement recorded under S.342, Cr.P.C.

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

----S. 417---Appeal against acquittal---Principles---Accused, after acquittal, enjoys double presumption of innocence, one before trial and second after his acquittal---Court, while dealing with an acquittal appeal, was under duty to examine whether the court below had not ignored any evidence on record or had discarded any evidence for reasons not recognized by law.

1985 SCMR 1345 ref.

Barkat Ali v. Shoukat Ali and others 2004 SCMR 249 rel.

Asif Hussain M. Nawaz Chandio for Appellant/Complainant.

Khadim Hussain Khooharo, A.P.-G. for Respondents.

Date of hearing: 10th November, 2015.

2016 P Cr. L J 735

[Sindh]

Before Aftab Ahmed Gorar and Muhammad Iqbal Mahar, JJ

RIZWAN ALI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-347, D-349 of 2012, Cr. Spl. ATA Appeals Nos.D-348, D-352 and Criminal J. A. No. D-357 of 2012, decided on 4th November, 2015.

Penal Code (XLV of 1860)--

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom---Appreciation of evidence---Ransom money--¬Proof---Complainant stated that he was asked to stop the car and bring shopping bag outside the window of car, one person went there and took shopping bag---Complainant stated that his son disclosed names of culprits and he had seen face of that person who had taken shopping bag containing, amount of ransom---Accused persons were convicted by Trial Court and sentenced to imprisonment for life---Validity---For handing over ransom amount to accused, there was only evidence of complainant even driver of his car or anybody else was not examined regarding payment of Rs. 12,00,000 to accused---Complainant had seen accused who had taken money, first time at police station but Investigating Officer did not hold identification parade whereas abductee stated that such person remained employee of complainant---All accused persons were arrested on 20-06-2011 by Anti-Car Lifting Cell and TT pistols were recovered from four accused persons---Two accused produced certified copy of application under S. 491, Cr.P.C., filed by their relatives on 18-06-2011 claiming them to have been illegally detained at Crime Investigating Agency Center but due to leakage of order of raid police officials concealed accused persons and showed their arrest and recovery on 20-06-2011---As such arrest of accused persons and recovery of pistols from them was doubtful---Many contradictions and exaggerations existed in evidence which were not considered by Trial Court while deciding case of appellants---Prosecution failed to prove in case against accused persons beyond shadow of reasonable doubt---High Court set aside conviction and sentence awarded by the Trial Court and acquitted all the accused of the charge---Appeal was allowed in circumstances.

Muhammad Tufail v. The State 2013 SCMR 768 and 2012 SCMR 538 rel.

Imam Bux Baloch and Ghulamullah Chang for Appellants.

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

Date of hearing: 4th November, 2015.

2016 P Cr. L J 751

[Sindh]

Before Abdul Rasool Memon, J

Dr. MANZOOR ALI---Applicant

Versus

Dr. JAVED IQBAL SENIOR MEDICAL OFFICER. and another---Respondents

Crl. Revision Application No. S-47 and M.As. Nos. 2875, 2876 of 2015, decided on 11th August, 2015.

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

----S. 5(2)---Penal Code (XLV of 1860), Ss. 161 & 471---Criminal Procedure Code (V of 1898), Ss. 200 & 203---Public servant taking gratification other than legal, remuneration in respect of an official act; using as genuine a forged document, criminal misconduct---Official act, scope of---Complainant filed private complaint alleging that accused had produced a false medical certificate in civil appeal regarding property dispute pending between them, which he was allegedly issued by accused-doctor and that the doctor had demanded bribe for denying issuance of said medical certificate---Trial court, after preliminary inquiry, dismissed the complaint---Medical Superintendent of the hospital had confirmed the profession and position of the doctor---Doctor himself had verified the genuineness of the medical certificate in question, and as such, allegations relating to falsity of medical certificate did not constitute ingredients of S. 471, P.P.C.---If allegations as to demand of bribe by the doctor were presumed to be correct, even then, offence under S. 161, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947 would not be deemed to have been committed for reasons, firstly, complainant had mentioned neither phone number on which the doctor had allegedly contacted him and made the demand of bribe nor as how had he obtained that number, secondly, medical certificate undisputedly had been issued by the accused on his pad of private clinic, which neither related to his status as public servant, nor had he issued the same in his official capacity---Issuance of medical certificate in question, as such, could not be treated to be an official act of the accused as public servant, which was punishable under S. 5(2) of Prevention of Corruption Act, I947---High Court maintained the impugned order---Revision petition was dismissed in circumstances.

PLD 1975 Kar. 239 rel.

Mazhar Ali Bhutto for Applicant.

2016 P Cr. L J 761

[Sindh]

Before Ahmed Ali M. Shaikh and Sadiq Hussain Bhatti, JJ

NISAR AHMED ANSARI through his real son---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and 2 others---Respondents

C.P. No.D-3161 and Misc. No. 21557 of 2015, decided on 20th October, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v), (b) & 23---Bail, grant of---Assets of accused beyond known sources of income---Prima facie case, absence of---Accused was public servant and on receipt of an anonymous complaint, National Accountability Bureau initiated inquiry against him alleging that he had gained assets beyond known sources of his income resultantly he was arrested---Validity---Mere gravity or heinousness of alleged offence was not sufficient to keep a person facing trial behind bars indefinitely as of punishment---Personal liberty was a valuable constitutional right and could not be curbed except in accordance with the procedure established by law in order to strike a balance between right to individual liberty and interest of society---Court could impose different conditions which were necessary to ensure that accused would be available for facing trial---Prosecution was at liberty to adduce evidence at time of trial in support of its allegations---Provisions of S. 23 of National Accountability Ordinance, 1999, provided a complete mechanism against transfer of properties in possession of accused or in the name of his spouse or relatives, which were subject matter of reference pending adjudication before Accountability Court---Accused while in service had faced inquiries and investigations under the same set of allegations but he was exonerated by National Accountability Bureau---Allegation against accused was that during his service tenure, he along with his family members travelled abroad more than seventy-one times but prosecution could only disclose ten foreign tours in investigation report---Unless sufficient material, prima facie, connecting accused with commission of alleged offence was collected, he could not be kept behind the bars indefinitely waiting for prosecution to collect more and more evidence---Bail was allowed in circumstances.

Khalid Aziz v. The State 2011 SCMR 136 and Hakim Ali Zardari v. State 2007 MLD 910 rel.

Ghani-¬ur-Rehman v. NAB PLD 2011 SC 1144; Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408; Syed Qasim Shah v. The State 2009 SCMR 790; Muhammad Nawaz v. The State PLD 2008 SC 438; Dhani Bux Khuhro v. National Accountability Bureau Sindh (C.P. No.D-256 of 2015); Badar Jameel Mandhro v. The State (C.P. No.D 3322 of 2015) and Khadim Hussain Channa v. The State (C.P. No.D-3323 of 2015) ref.

Rasheed A. Rizvi for Petitioner.

Noor Muhammad Dayo, ADPG, along with Asghar Khan, Deputy Director, NAB for Respondent No.2.

Date of hearing: 25th August, 2015.

2016 P Cr. L J 786

[Sindh]

Before Hasan Feroz, J

Mst. NASEEM AZIZ---Applicant

Versus

The STATE and 7 others---Respondents

Cr. Revision Application No.196 of 2013, decided on 24th December, 2014.

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

----S. 3---Illegal possession of property---Complaint---Cognizance---Scope--- Complaint was dismissed by the Trial Court without summoning of accused---Validity---Court while taking cognizance of complaint had only to consider the existence of a prima facie case either on the basis of averments made in the complaint and the statements of complainant on oath---Complainant herself was not having the clear title with regard to the disputed property---Complainant had failed to establish her stand so taken with regard to forcible dispossession---All ingredients or elements must be made out before it was established that the offence had been committed by the accused person---If even one of the ingredients or elements was missing, then no offence would be made out--- Trial Court had dismissed the complaint on sound footings---Complainant had remedy before the civil court---Revision was dismissed in circumstances.

2008 YLR 2259; PLD 2008 Kar. 94; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Iftikhar Ahmad v. Zulfiqar Ali and others PLD 2008 Lah. 59 and Rahim Tahir v. Ahmed Jan and others PLD 2007 SC 423 distinguished.

2010 PCr.LJ 1046 566 and 2009 SCMR 1066 rel.

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

----S 3---Illegal possession of property---Complaint---Cognizance---Criteria---Court while taking cognizance of complaint had only to consider the existence of a prima facie case either on the basis of averments made n the complaint and the statements of complainant on oath.

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

----S. 3---Illegal possession of property---Complaint---Pre-requisites---Complainant in order to constitute an offence had to allege and show that he was actual owner (or occupier i.e. in lawful possession) of immovable property in question; that accused had entered into (or upon) the said property; that entry of accused into (or upon) the said property was without any lawful authority and accused had done so with the intention to dispossess (to grab or to control or to occupy) the complainant.

Haris Rasheed Khan for Applicant.

Zulfiqar Haider for Respondents.

Muhammad Iqbal Awan, APG for the State.

Date of hearing: 16th December, 2014.

2016 P Cr. L J 831

[Sindh]

Before Syed Saeeduddin Nasir, J

WAJID alias WAJI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-457 of 2015, decided on 10th June, 2015.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs---Bail, grant of---Further inquiry---Only 1500 grams of Charas was allegedly recovered from the accused---Present case appeared to be a borderline case, which attracted the provisions of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, and the benefit of such discrepancy was, therefore, to be extended to the accused---No private witness had been associated with, and no private person had signed the Mashirnama of arrest and recovery---Prosecution had not claimed that the accused was previously involved in the same nature of cases---State counsel had no objection if the bail was granted to the accused---Case of accused was that of further inquiry in terms of S. 497(2), Cr.P.C.---Bail application was allowed accordingly.

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

----S. 497---Bail---Appreciation of evidence---Principles---At bail stage, deeper appreciation of evidence cannot be gone into and only it is to be seen that whether or not the applicant is prima facie connected with the commission of offence.

Ayaz v. The State 2011 PCr.LJ 177; Taj Ali Khan v. The State 2004 YLR 439; Rayasat Ali v. The State 2005 YLR 1862; Mahboob Ali v. The State 2007 YLR 2968; Gulab Hussain v. The State 2009 YLR 189; Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Pervaiz Ahmed v. The State PLD 2008 Kar. 14 rel.

Ashiq Hussain D. Solangi for Applicant.

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

Date of hearing: 5th June, 2015.

2016 P Cr. L J 859

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

The STATE through Prosecutor General Sindh---Appellant

Versus

MUHAMMAD SABIR alias SABIR---Respondent

Cr. Acquittal Appeal No. D-46 and M.A. 1916 of 2013, decided on 9th November, 2015.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), Ss. 417 & 245(1)---Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs---Appeal against acquittal---Appreciation of evidence---Mode of making search and arrest---Requirements---False implication---Benefit of doubt---Charas weighing 3000 grams was alleged to have been recovered from possession of the accused---Trial court, extending the benefit of doubt under S. 245(1), Cr.P.C., acquitted the accused---Prosecution witnesses, the complainant and Mashir, had given contradictory versions of the alleged incident and their testimony differed from each other on material point---Complainant had stated that the accused had been arrested at 4:00 pm in broad day light near a hospital, but he had not arranged or called any private person from the hospital to cite him as witness of arrest of the accused and recovery of the Charas from his possession---Section 25 of Control of Narcotic Substances Act, 1997 neither authorized the complainant/police officer to exclude independent witness nor did the same override the principle of producing the best available evidence---No reasons had been given for not associating the private independent witnesses, nor any effort appeared to have been made in that regard---Said circumstances had created doubt as to the conduct of fair and independent enquiry into the matter---False implication of the accused in the present case could not be ruled out, particularly when the complainant himself had registered the complaint and investigated the same, and both the prosecution witnesses/Mashirs were police officials---Prosecution had failed to produce any material evidence against the accused beyond any shadow of doubt, and the accused had proved himself to be innocent---Appeal against acquittal was, dismissed.

Nazeer Ahmed v. The State PLD 2009 Kar. 191; Jalaluddin v. The State 2015 PCr.LJ 1402; Muhammad Aijaz Ahmed v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 and Muhammad Haneef v. Mst. Reshman and 3 others 1998 PCr.LJ 1576 rel.

(b) Criminal Trial---

----Benefit of doubt---Principles---More than one infirmity is not required, and a single infirmity creating reasonable doubt in the mind of a prudent man regarding truth of the charge is sufficient to give the benefit of doubt to the accused.

Jalaluddin v. The State 2015 PCr.LJ 1402 ref.

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

----Ss.417 & 410---Appeal against acquittal/appeal against conviction---Scope---Scope of appeal against conviction and appeal against acquittal are altogether different---Accused in an appeal against acquittal earns double presumption of innocence (one before trial and the other after acquittal)---For reversal of acquittal of accused, the complainant has to bring on record that the evidence on record has not been properly considered, and that the order of the trial court is fanciful, perverse and not in accordance with the law.

Muhammad Aijaz Ahmed v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 and Muhammad Haneef v. Mst. Reshman and 3 others 1998 PCr.LJ 1576 ref.

Zulfiqar Ali Jatoi DPG for the State.

2016 P Cr. L J 883

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mahar, JJ

SIP, ADAM ABRO and 13 others---Petitioners

Versus

Syed MUHAMMAD AMIN SHAH and 2 others---Respondents

Criminal Revision Application No. D-137 and M. A. No. 5898 of 2015, decided on 14th January, 2016.

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

----S. 265-K---Anti-Terrorism Act (XXVII of 1997), S. 6---Terrorism---Kidnapping for ransom---Power of court to acquit accused at any stage---Scope and requirements---Contradictions in private complaint and statement of witnesses during preliminary inquiry and delay in filing complaint---Effect---Accused was alleged to have abducted nephew of the complainant for ransom---Anti-Terrorism Court dismissed the application under S. 265-K, Cr.P.C. on the ground that the points raised therein, being related to factual aspects of the case, required evidence---Accused had simply pleaded that the charge against him was false and in support of his contention had referred to certain contradictions in the complaint and the statements of the witnesses---Accused was not able to show any material discrepancy in the contents of the complaint and the statements of witnesses to establish that the allegations against them were prima facie false and fabricated and that those allegations even if proved would not end in their conviction---Accused could not be acquitted under S. 265-K, Cr.P.C. on basis of any alleged contradictions in the statements of the witnesses---Object of S. 265-K was to satisfy the court about prima facie occurrence of the incident---Benefit of the provision of S. 265-K, Cr.P.C could only be extended to the accused, when once he was able to establish that the charge of the offence against him was groundless and no probability of his conviction on basis of the such charge existed---Delay in filing of the complaint also could not be considered valid ground for acquittal of the accused under S. 265-K, Cr.P.C.--- Whether any adverse consequence was to follow or not due to the delay was essentially a factual question, which had to be appreciated only in the light of the evidence---Delay in lodging the complaint, even otherwise, appeared to have been reasonably explained---Accused, in the given circumstances were not entitled to be acquitted under S. 265-K, Cr.P.C.---Revision was dismissed accordingly.

PLD 1999 SC 1063; 2012 PCr.LJ 999; PLD 1978 Kar. 348; PLD 1996 Kar. 253; 1996 MLD 111; PLD 1980 Kar. 1840; 1998 SCMR 1840; 1991 PCr.LJ 1368; 2008 SCMR 383 and 2008 SCMR 1544 ref.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope---False groundless charge---Effect---False charge has altogether different connotation than the charge which is groundless---In the first case, the court can reach such conclusion and acquit the accused only after evidence is recorded---Accused, however, can be acquitted at any stage of the trial, even before framing of formal charge against him if the charge is groundless---In order to show that the charge is groundless, the accused has to convince the court that no material exists on basis of which he can be convicted and continuation of the trial against him is exercise in futility, and that even if the allegations leveled against him are taken to be true, no probability of their conviction exists.

Tahseen Ahmed Qureshi for Applicants.

M. Waseemuddin Sahikh for Respondent No.1.

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

Date of hearing: 14th January, 2016.

2016 P Cr. L J 920

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

Syed IMRAN ALI alias IMRANI---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 1376 and 1377 of 2015, decided on 17th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Sindh Arms Act (V of 2013), S.23(1)(a)---Explosives Substances Act (VI of 1908), Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Making or possessing explosives; attempt to cause explosion; terrorism---Bail, refusal of---Contention of accused was that complainant Police Officer had acted as Investigating Officer, therefore, his investigation could not be safely relied upon and that accused was arrested much prior to registration of FIR, hence, his false implication could not be ruled out---Validity---In deciding bail application, court had to make tentative assessment of the case and did not have to go into detailed deliberation as raised in the application---No legal prohibition existed for a Police Officer to be complainant as well as Investigating Officer of a case---Offence was punishable for a term extending 10 years and even otherwise having a hand grenade was a grave offence, undermining law and order situation---Accused could not make out a case for bail---Bail was denied, accordingly.

Muhammad Yousuf v. The State 1997 PCr.LJ 21; Akhtar Hussain Shah v. The State 1999 PCr.LJ 225; Asif v. The State PLD 2013 Sindh 586 and Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82 distinguished.

M. Imran Meo for Applicant.

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

Date of hearing: 10th December, 2015.

2016 P Cr. L J 934

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ

HAMOOD-UR-RAHMAN and others---Petitioners

Versus

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

C.Ps. Nos. D-5670, 4647, 4726, 5988, 6188 and 6620 of 2015, decided on 12th February, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi) & (b)---Bail, refusal of---Case of further inquiry---Proof---Prima facie case---Civil suit, pendency of---Petitioners were accused of illegally selling government land measuring 1307 acres by making fake and forged entries in record of rights and misusing their authorities---Validity---National Accountability Bureau, on tentative analysis of material as indicated through investigation report and Reference, collected sufficient material to provide reasonable grounds for believing that prima facie case existed against all accused persons and as such it was not a case of further inquiry---Existence of civil suit was not of much relevance in connection with deciding bail application---Civil suit was a separate matter distinct from criminal offence which the accused persons had been charged with---Provisions of National Accountability Ordinance, 1999, had overriding effect over general laws---On tentative analysis of material against each accused and taking into account the possibility of interfering with witnesses and absconsion and large value of land involved and gravity of offence and their active involvement and connection with the offence, High Court declined to grant bail to accused persons---Petition was dismissed in circumstances.

Muhammad Rashid Umar v. The State through Chairman NAB SBLR 2012 SC 78; Absul Aziz Niazi v. NAB PLD 2003 SC 668; Khalil Ahmed Sarhandi and others v. Chairman NAB 2008 PCr.LJ 967; Chandi Ram v. Chairman NAB 2008 PCr.LJ 1172; AIR 2007 SC 1721; Ghulam Abbas v. State 2005 PCr.LJ 244; Parveen Akhtar v. State 2002 SCMR 1886; Hazurdad v. Sajid Khan 1998 PCr.LJ 633 and Abdullah Shah v. State 2002 PCr.LJ 1387 ref.

Muhammad Ashraf Qazi, Raham Ali Rind, Muhammad Naeem Memon, Abbas Rasheed Rizvi, Abdul Hakeem Jakhro and Ali Azad Saleem for Applicants.

Noor Muhammad Dayo, ADPG NAB along with I.O. Muhammad Bilal Anwar for NAB.

Date of hearing: 9th February, 2016.

2016 P Cr. L J 961

[Sindh]

Before Shahnawaz Tariq and Ghulam Qadir Leghari, JJ

MUHRAM ALI and others---Applicants

Versus

The STATE and others---Respondent

Criminal Misc. Applications Nos. 913 of 2014 and 36 of 2015, decided on 10th December, 2015.

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

----Ss. 23, 8, 7 & 6(k)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S. 561-A---Qatl-i-amd; abetment; common object; terrorism---Power to transfer cases to regular courts---Application under S. 561-A, Cr.P.C.---Complainants alleged that the accused persons demanded Bhatta from them, and on their refusal to pay the same, the accused attacked on them with firearms making straight and aerial firing, which had resulted in killing of the deceased---Anti-Terrorism Court dismissed application for transfer of the case to ordinary court---Validity---Undeniably, the parties were on inimical terms with each other, as factum of animosity was reflected form the series of FIR's lodged by them---Government had issued notification, whereby reward money for dangerous criminals had been notified and the name of the deceased was mentioned therein---Said notification had also mentioned the personal character and criminal activities of the deceased---Neither the deceased had challenged said notification, nor the same had been recalled by the Home Department---Averments of the FIR were silent regarding financial status and source of income of the complainant against which the accused had been demanding Bhatta---Complainant had also not disclosed the specific dates, time and places of demanding of Bhatta by the accused person, nor any such evidence had been produced before the Investigating Officer to prima facie establish such allegations---Mere allegations of demanding Bhatta, in absence of any tangible material, did not attract S. 6(k) of Anti-Terrorism Act, 1997---Section 6(k) of Anti-Terrorism Act, 1997 was neither mentioned in the FIR nor in the Challan---Anti-Terrorism Court had taken cognizance of the case while declining request of the Investigating Officer to transfer the case to the ordinary court---Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record, had replicated that the offence had been committed on account of previous enmity with a definite motive---Alleged place of occurrence was not populated area, and consequently, the allegations of aerial firing did not appear to be a case of terrorism---Intention of the accused party did not depict or manifest any act of terrorism---Loss of life existed in a murder case, which was also heinous crime against the society, but trial of each murder case could not be adjudged by the Anti-Terrorism Court, except where peculiar circumstances as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997 existed---High Court, allowing application under S. 23 of Anti-Terrorism Act, 1997, directed the Anti-Terrorism Court to transmit the case to the Sessions Judge---Application under S. 561-A, Cr.P.C was allowed accordingly.

Noor Khan v. Judge Special, Anti-Terrorism Court, Sargodha and another 2001 PCr.LJ 581; Muhammad Sarwar and another v. Federation of Pakistan, Ministry of Law and Parliamentary Affairs and 6 others 2001 PCr.LJ 1528; Ch. Zulifqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593; Nazeer Ahmed v. the State PLD 2009 Kar. 191; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195; The State v. Shamshur-Rehman alias Shamoo Dakoo alias Khalid 2000 YLR 902 and The State v. Dr. Khalid Moin and 3 others 2000 YLR 2668 ref.

Basharat Ali v. Special Judge, Anti-Terrorism Court, Gujranwala PLD 2004 Lah. 199; Atif Ali v. Special Judge, Anti-Terrorism Court, Lahore and 4 others 2014 YLR 2534 and Mohabbat Ali v. State 2007 SCMR 142 rel.

Qurban Ali Malano, Ghulam Shabeer Shar and Ghulam Shabeer Dayo for Applicants.

Sher Muhammad Shar for the Complainant.

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

Date of hearing: 10th December, 2015.

2016 P Cr. L J 975

[Sindh]

Before Shahnawaz Tariq, J

Syed HYDER ALI SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 740 of 2015, decided on 11th November, 2015.

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

----Ss. 497 & 103---Control of Narcotic Substances (XXV of 1997), Ss. 6, 7, 8 & 9---Bail, grant of---Possession, import and export trafficking or financing trafficking of narcotic drugs---Search to be made in presence of witnesses---Bail, grant of---Independent mashir/witnesses, absence of--- Further enquiry---Consistency, rule of---Applicability---Recovery, mode of---Two recovered envelopes of heroin were not weighed separately---Effect---Duty of Chemical Examiner---Benefit of doubt at bail stage---Scope---Enmity, existence of---Complainant had prior information about the accused having narcotic substances in their possession for sale, but he had neither associated any independent mashir/witness nor made any serious efforts to get any public person to act as mashir---Private persons should have been given preference if they were available at the spot, rather than personnel, to maintain transparency of the recovery---Heroin powder was recovered from two envelopes, but the same was not weighed on the spot, and the complainant had assessed its total weight to be 1300 grams tentatively---Chemical Examiner had also not weighed both envelopes separately mentioning their net weight, but he had mentioned total weight of heroin powder lying in two envelopes as 1300 grams---Chemical Examiner was duty bound to mention net weight of heroin powder lying in the two envelopes separately after deducting weight of both envelops---Net weight of the heroin powder might become more or less 1000 grams after deducting weight of both envelopes---Co-accused had already filed harassment petition against the complainant, under which court had directed the complainant not to cause any kind of harassment to the accused---Prosecution could not satisfy as to why the complainant had registered second FIR against present accused for the same narcotic, which had reflected the personal grudge of the complainant---Co-accused had already granted bail---No criminal case was already registered against the accused---Accused was regular university student and a character certificate had also been issued in his favour---Challan had already been submitted and the accused was no more required---No apprehension of tampering with prosecution evidence existed, as prosecution witnesses were police officials---Bail application was accepted accordingly.

State v. Bashir and others PLD 1997 SC 408 rel.

(b) Criminal Procedure Code (V of 1908)---

----S. 497---Bail---Benefit of doubt---Principles---Any iota of doubt even at bail stage shall be counted in account of accused, and court should not hesitate to extend such benefit irrespective of the sensitivity of offence.

Amanullah G. Malik for Applicant.

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

Date of hearing: 11th November, 2015.

2016 P Cr. L J 989

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

WAHID BAKHSH alias WAHIDOO---Applicant

Versus

The STATE---Respondent

Cr. Miscellaneous Application No. D-230 of 2015, decided on 5th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Inherent powers of High Court under S. 561-A, Cr. P. C. ---Scope--- Terrorism--­ Scope---Accused impugned order of Trial Court whereby application for transfer of his case from Anti-Terrorism Court to Sessions Court was rejected---Contention of accused was that he had been involved in a false case by police and provision of S. 7 of Anti-Terrorism Act, 1997 had also been included in FIR to drag accused in criminal case, in spite of the fact that no ingredient of S. 6 of Anti-Terrorism Act, 1997 was attracted---Validity---Anti-Terrorism Act, 1997 was a special law which had been promulgated to prevent crimes of such nature which would create terror and sense of insecurity in public-at-large and also to prevent an act relating to sectarian violence or ethnic cause, kidnapping for ransom, extortion of money and similar acts which fell within the ambit of terrorism as defined in S. 6 of Anti-Terrorism Act, 1997---In the present case, it had come on record that alleged police encounter continued for 20 minutes but no one either from the accused party or police had sustained any injury, and police mobile had not received any grevious damage---Trial Court while passing impugned order had failed to examine as to whether ingredients of alleged offence had any nexus with the object of "case" as contemplated under Ss. 6 & 7 of Anti-Terrorism Act, 1997---Order of Trial Court not containing any valid reasons was set aside---Application was allowed, accordingly.

Mohabbat Ali and another v. The State and another 2007 SCMR 142; Liaquat Ali and 2 others v. Special Judge Anti-Terrorism Court No.1 Gujranwala and 3 others 2007 YLR 1222; Hazoor Bux and another v. The State and another PLD 2012 Sindh 469; Younus v. The State and 2 others 2014 PCr.LJ 1062 and Umer Farooq and 2 others v. Judge, Anti-Terrorism Court, Mirpurkhas and another 2014 PCr.LJ 1052 rel.

Alam Sher Bozdar for Applicant.

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

2016 P Cr. L J 1012

[Sindh]

Before Aftab Ahmed Gorar and Muhammad Iqbal Mahar, JJ

MUHAMMAD BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-16 of 2015, decided on 12th November, 2015.

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

----S. 7(e)---Kidnapping or abduction for ransom---Appreciation of evidence---No one had been nominated in the FIR lodged by the complainant---Alleged abductee, had not implicated accused in his abduction, on the contrary, he clearly stated before the Trial Court that accused was neither from those who had abducted him nor from persons who kept him in their captivity; or present at the time when Police conducted raid---Investigating Officer, and Mashir, deposed that they conducted raid at the house in question and recovered alleged abductee along with his car and arrested accused---Despite advance information they did not associate any person from the locality to strengthen arrest and recovery proceedings---Alleged abductee, was not recovered from the house of accused---When accused was arrested, he was alone in the house to guard the abductee, but no weapon was recovered from his possession or from his house---PATTI (piece of cloth) with which eyes of abductee were covered, and which allegedly was removed by Investigating Officer, was neither secured, nor was produced before the Trial Court---No incriminating material was collected from said house---Prosecution had not been able to prove charge of abduction of alleged abductee against accused beyond shadow of doubt---Impugned judgment passed by the Trial Court was set aside and accused was acquitted from the charge in circumstances.

Syed Tarique Ahmed Shah for Appellant.

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

Date of hearing: 12th November, 2015.

2016 P Cr. L J 1047

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mahar, JJ

ATTIQULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-42 of 2015 and M.A. No. 1762 of 2014, decided on 31st March, 2016.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sixteen bags of heroin each containing 1 Kg, and Twenty bags of charas each containing 1 Kg were recovered respectively from secret cavity of oil tank of the truck driven by accused---Complainant, separated sixteen samples of heroin and twenty samples of charas from each bag, each weighing 100 grams; and sealed those for Chemical Analyser---Remaining property was sealed separately, and was produced before the court at the time of examination of prosecution witnesses---Report of Chemical Analyser was positive---Complainant/ Excise Inspector and Mashir Excise Constable, both prosecution witnesses, had fully supported the prosecution case---Both said accused persons, and complainant and mashir constable, were residents of different Provinces---No enmity was alleged between them, which could prompt them to falsely implicate accused persons---Both said witnesses supported each other on material points; and there was no major contradiction in their evidence---Both accused persons were in exclusive possession of the truck, wherefrom the heroin and charas were recovered---Possession of the contraband items, was proved beyond any doubt---Both accused were equally responsible for possessing the narcotics recovered from the secret cavity of the truck---Prosecution having proved its case against accused persons beyond any shadow of doubt, impugned judgment of the Trial Court, did not suffer from any infirmity, and same was maintained---Appeal being devoid of merits, was dismissed, in circumstances.

Abdullah Khan for Appellants.

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

Date of hearing: 10th March, 2016.

2016 P Cr. L J 1075

[Sindh]

Before Syed Saeeduddin Nasir, J

MUHAMMAD AKRAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 595 of 2015, decided on 10th December, 2015.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Prohibition of possession of narcotic drugs---Bail, grant of---Borderline case under Ss. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997---Further inquiry---Private witnesses of recovery and arrest not associated---Fifteen kilograms of Charas was alleged to have been recovered from possession of the accused---Where recovery of narcotic substance did not exceed the limit between 900 to 1500 grams, the case being borderline between S. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997 the accused was to be admitted to bail---No private witness had been associated and no private person had signed the Mashirnama of arrest and recovery---Accused was not previously involved in case of similar nature---Prosecution witnesses, being official witnesses, no likelihood to tamper with the prosecution case existed if the accused was released on bail---Challan had already been submitted and the accused was no more required for further investigation---Prosecution had not examined even a single witness for one year after submission of the Challan---Case of accused was also one of further inquiry---Bail application was allowed accordingly.

Ayaz v. The State 2011 PCr.LJ 177; Taj Ali Khan v. The State 2004 YLR 439; Riyasat Ali v. The State 2005 YLR 1862; Mehboob Ali v. The State 2007 YLR 2968; Gulab Hussain v. The State 2009 YLR 189; Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Pervaiz Ahmed v. The State PLD 2008 Kar. 14 rel.

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

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

Abdul Sami for Applicant.

Muhammad Iqbal Awan, APG for the State.

Date of hearing: 4th December, 2015.

2016 P Cr. L J 1092

[Sindh]

Before Syed Saeeduddin Nasir, J

MUHAMMAD OWAIS---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No. 268 of 2015, decided on 16th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 408 & 381---Cheating and dishonestly inducing delivery of property; criminal breach of trust; theft by servant---Quashing of criminal proceedings---Scope---Contention of accused was that he was innocent and victim of personal grudge and departmental rivalry due to which he had been falsely implicated in the present case---Complainant's plea was that order passed by Judicial Magistrate was unexceptionable and that application for quashing the proceedings was liable to be dismissed inasmuch as the same was premature due to the fact that charge had been framed and summons and warrants had already been ordered to be issued to the complainant and witnesses---Held, that it was an admitted position that charge had been framed and summons and warrants had already been ordered to be issued to the complainant and witnesses---Four prosecution witnesses, including complainant himself, whose evidence was material was yet to be recorded in order to determine the guilt of accused---In absence of any prosecution witness being examined and any material evidence being brought on record by prosecution, application for quashment was premature and devoid of any merit---Application was dismissed, accordingly.

Izhar Hussain v. Inspector Aslam Pervez, SHO, Khokhrapar P.S., Karachi and another 2014 PCr.LJ 1329 and Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR and 4 others 2015 PTD 349 distinguished.

Aamir Mansoob Qureshi for Applicant.

Anwar Ali, APG for the State.

Date of hearing: 10th December, 2015.

2016 P Cr. L J 1120

[Sindh]

Before Naimatullah Phulpoto, J

SABIR HUSSAIN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1622 and 1864 of 2014, decided on 19th August, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment and common intention---Bail, refusal of---Allegation against the accused was that he set fire on his wife who succumbed to the injuries---Sufficient material had been collected against the accused during investigation---Delay in lodging FIR would not be a sufficient ground for grant of bail---Reasonable grounds existed to believe that accused had committed the alleged offence---Bail petition moved by the accused was without merit which was dismissed in circumstances---Trial Court was directed to decide the case within a specified period.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment and common intention---Pre-arrest bail, recalling of---Allegation against the accused was that he instigated the co-accused---Investigating Officer exonerated the accused but Judicial Magistrate did not agree with the same---Opinion of Investigating Officer was not binding upon the court---Delay in lodging FIR would not be a sufficient ground for grant of bail---Reasonable grounds existed to believe that accused had committed the alleged offence---Interim pre-arrest bail granted to the accused was recalled in circumstances.

Qudrat Bibi v. Muhammad Iqbal 2003 SCMR 68 and Rana Muhammad Arshad v. Muhammad Rafiq PLD 2009 SC 427 rel.

Muhammad Arshad Mughal for Applicant (in Cr. B.A. No.1622 of 2014).

Moulvi Iqbal Haider for Applicant (in Cr. B.A. No.1864 of 2014).

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

Khawaja Muhammad Azeem for the Complainant.

Date of hearing: 10th August, 2015.

2016 P Cr. L J 1130

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

DADOO alias WADDAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-06 of 2012, decided on 28th January, 2015.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 21-L & 7---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Constitution of Pakistan, Arts. 9 & 10-A---Act of terrorism, kidnapping or abduction for extorting property, rioting and unlawful assembly---Absconsion of accused---Conviction and sentence in absconsion--- Scope---Trial Court convicted the accused on his absconsion and sentenced him to five years imprisonment and his movable and immovable properties were also forfeited---Validity---Proceedings under Ss.87 & 88, Cr.P.C. were initiated for declaring the accused as proclaimed offender for the purpose of proceeding with the case in his absentia---Neither any charge was framed against the accused under S. 21-L of Anti-Terrorism Act, 1997 nor recorded evidence to prove the ingredients of S. 21-L---Trial Court had failed to formulate a point for determination with regard to offence under S. 21-L of Anti-Terrorism Act, 1997 in the impugned judgment---Nothing was on record to show that absconsion of accused was intentional---No finding had been recorded by the Trial Court with regard to abscondence of the accused---Trial Court had convicted and sentenced the accused in a cursory manner---Procedure adopted by the Trial Court in convicting and sentencing the accused under S.21-L of Anti-Terrorism Act, 1997 was illegal---Accused was acquitted for offences under Ss. 365-A, 148 & 149, P.P.C. and S. 7 of Anti-Terrorism Act, 1997---Conviction of accused under S. 21-L of Anti-Terrorism Act, 1997 recorded by the Trial Court was violative of Arts. 9 & 10-A of the Constitution---Conviction and sentence awarded to the accused by the Trial Court for offence under S. 21-L of Anti-Terrorism Act, 1997 were set aside and he was acquitted---Appeal was allowed in circumstances.

Muhammad Arif v. The State 2008 SCMR 829 and Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 ref.

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

----Ss. 25 & 19(12)---Conviction and sentence in absentia---Direct appeal to High Court---Scope---Person convicted and sentenced in absentia could file direct appeal before High Court without first making an application before the Trial Court.

Shahbaz Ali M. Brohi for Appellant No.1.

Khadim Hussain Khooharo, Deputy Prosecutor-General for the State.

Date of hearing: 28th January, 2015.

2016 P Cr. L J 1183

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ

Syed MUZAFFAR ALI and another---Petitioners

Versus

The CHAIRMAN NAB and others---Respondents

C. Ps. Nos. D-6459 and D-6698 of 2015, decided on 29th February, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix), 10 & Preamble---Corruption and corrupt practices---Bail, grant of---Principles---Voluntary return and plea bargain---Bail subject to deposit of amount claimed by National Accountability Bureau---Principles---Accused, along with his partner, was alleged to have collected rupees 9.1 million from people on account of bookings of plots in a fake/dummy housing society initiated on his land without following the legal formalities and approval---Accused sought grant of bail on ground of deposit of the amount claimed by National Accountability Bureau---Primary purpose of National Accountability Ordinance, 1999, as set out in its Preamble and use of unique provision therein, such as 'voluntary return' and 'plea bargain', was the recovery of ill-gotten gain; however, penal aspects of the offence could not be ignored, as in case the accused were convicted without the 'Plea Bargain' under the Ordinance, sentence of imprisonment was likely to follow---Accused, if they were convicted, would also face penal sentence, even in case the full loss would have been secured---Offer to pay the full amount claimed by National Accountability Bureau, therefore, would not alone be the sole factor in determining as to whether or not to grant bail, and the deposit would not automatically lead to the grant of bail---Other factors such as risk of abscondance, interfering with the witnesses by the accused, whether other accused were on bail, etc. would also need to be considered---Based on the particular facts and circumstances of present case, the trial of the case was likely to be lengthy, no allegations existed that the accused would abscond or interfere with the witnesses---National Accountability Bureau also had no objection as to grant of bail to the accused on deposit of the claimed amount---High Court released the accused subject to deposit of amount claimed by the National Accountability Bureau; while the co-accused, for their release, in addition to said deposit by the main accused, were also required to furnish solvent security and restricted from leaving the country without permission of Accountability Court---Bail applications were allowed accordingly.

Shamraiz Khan v. State 2000 SCMR 157 ref.

Mohammed Rashid Umar v. State SBLR 2012 SC 78 rel.

Javed Haleem and Aamir Mansoob Qureshi for Petitioners.

Noor Muhammad Dayo, ADPG NAB for Respondents.

Date of hearing: 24th February, 2016.

2016 P Cr. L J 1206

[Sindh]

Before Zafar Ahmed Rajput, J

MUHAMMAD RIAZ and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1454 of 2015, decided on 17th December, 2015.

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

----S. 497(1)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of--- Statutory delay--- Accused had been behind the bars for the last fifteen months--- Charge against the accused had to be framed within reasonable period by the Trial Court, but the same had taken more than seven months--- Delay in conclusion of trial was not attributed to the accused--- No ground was available with the prosecution to decline bail to the accused on the statutory ground---Bail application was, therefore, allowed accordingly.

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

----S. 497(1)---Bail on ground of statutory delay---Pre-conditions---Section 497, Cr.P.C. gives the accused independent right for grant of bail on ground of statutory delay in conclusion of trial---Said right is, however, subject to certain conditions: firstly, the delay in conclusion of trial has occasioned on account of an act or omission on part of the accused or any person acting on his behalf; secondly, the accused is a previously convicted offender for an offence publishable with death or imprisonment for life; thirdly, the accused, in the opinion of the court is a hardened, desperate or dangerous criminal; and fourthly, the accused is involved in an act of terrorism punishable with death or imprisonment for life---If said conditions are not applicable to the case of the accused, then, he is entitled to the bail as a matter of right---Since said right was not left to the discretion of the court, the same, therefore, could not be denied under the discretionary power of the court.

(c) Constitution of Pakistan---

----Act. 10-A---Right to fair trial---Scope---Right of an accused to an expeditious and fair trial has been enshrined in the Constitution---Object of criminal law is to make accused to face trial and not to punish him as an under-trial prisoner---Intention of the law is that criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice, on one hand, is likely to cause erosion of public confidence in the judicial system, and on the other hand the same is bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries---Accused cannot be deprived of the liberty without due process of law---If any delay occurs in trial due to the act of the court or prosecution, then, the liberty of accused cannot be curtailed for the fault on part of the court and prosecution.

Mustafa Sandhu for Applicants.

Zahoor Shah, APG for Respondent.

Date of hearing: 17th December, 2015.

2016 P Cr. L J 1221

[Sindh (Sukkur Bench)]

Before Amer Raza Naqvi, J

MADARSA MEHMOODIA (REGD.) through President---Applicant

Versus

MUHAMMAD SHARIF and 2 others---Respondents

Criminal Revision No. S-55 and M.A. No. 3487 of 2012, decided on 28th January, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Dismissal of complaint---Allegation of applicant was that Revenue Department had allotted piece of land to his Madrasa which was registered, but respondent had occupied some portion of that land, and had constructed a shop there---Applicant had not disclosed the date and time when alleged dispossession had taken place---In the claimed title documents, no exact description of land was given and it was also not clear as to what was the exact location of land claimed by the applicant---Applicant had failed to point out any sketch of the area, through which revenue department, or any land governing agency had given the possession of land to him by proper document---Trial Court had observed that remedy through civil proceedings was always available to the applicant---Provisions of Illegal Dispossession Act, 2005 were not applicable in the case of applicant---Well reasoned order, passed by the Trial Court, which covered almost every aspect of matter, could not be interfered with---Application was dismissed, in circumstances.

Applicant in person.

Respondent No. 1 in person.

Zulfiqar Ali Jatoi, D.P.-G.

2016 P Cr. L J 1252

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ

ABDUL QAVI KHAN and others---Petitioners

Versus

CHAIRMAN NAB and others---Respondents

C.Ps. Nos. D-7576, D-6044, D-7588, D-7516, D-6854 of 2015 and D-527 of 2016, decided on 24th February, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)(vi) & (b)---Pre-arrest bail, grant of---Abscondence, apprehension of---Interference with evidence---Accused persons were allegedly involved in land grabbing/China Cutting of state land which resulted into loss to National Exchequer---Validity---If accused persons were released on bail, any of them could damage prosecution's case by interfering with other co-accused persons who had already entered into a voluntary return and applied for plea bargain with National Accountability Bureau---Out of 21 accused in reference, 11 had already absconded and further absconsion of any of the accused if enlarged on bail could not be discounted bearing in mind the gravity of offence and evidence against them---High Court without going into deeper appreciation of material on record and on tentative analysis of material against each accused, his role in commission of offence, whether there were reasonable grounds to believe that he was guilty of offence and also taking into account possibility of interfering with witnesses, possibility of further absconsion, large value of land involved, gravity of offence and active involvement and connection with the offence, ad interim pre-arrest bail granted to accused persons was recalled---Constitutional petition was dismissed in circumstances.

Arif Sharif v. Chairman NAB 2004 SCMR 1805; Sanjay Chandra v. Central Bureau of Investigation 2012 SCMR 1732; Ameer Hamza alias Hamaza v. State 2015 PCr.LJ 1402; Muzzamil Niazi v. State PLD 2003 Kar. 526; Tariq Bashir v. State PLD 1995 SC 34 and Sikandar A. Akram v. State 1995 SCMR 387 ref.

Sanjay Chandra v. Central Bureau of Investigation 2012 SCMR 1732; Ameer Hamza alias Hamaza v. State 2015 PCr.LJ 1402 and Muzzamil Niazi v. State PLD 2003 Kar. 526 distinguished.

Amir Mansoob Qureshi for Petitioner (in C.P. No. D-7576 of 2015).

Shahzad Qamar Abbas for Petitioner (in C.P. No. D-6044 of 2015).

Muhammad Rehman Ghous for Petitioner (in C.P. No. D-7588 of 2015).

Muhammad Farooq for Petitioner (in C.P. No. D-7516 of 2015).

Mirza Sarfraz Ahmed for Petitioner (in C.P. No. D-6854 of 2015 and C.P. No. D-527 of 2016).

Noor Muhammad Dayo, ADPG NAB along with I.O. Jawad Hasan for NAB.

Saeed Ahmed Memon, Standing Counsel.

Date of hearing: 18th February, 2016.

2016 P Cr. L J 1298

[Sindh]

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

ISRAR KHAN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) SINDH through Director General---Respondent

Constitutional Petition No. D-6618 of 2015, decided on 27th April, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)---Housing scheme scam---Bail, refusal of---Accused was alleged to have committed the offence of cheating the public at large by collecting money from them for a housing project and not allotting them plots in the same---Specific role had been attributed to the accused in the reference submitted by National Accountability Bureau, wherein it was stated that he took over the ownership of the housing project through a sale agreement and had been managing the affairs of the project since long, and that the accused collected the payments from the allottees but did not give the physical possession and lease deeds to them---Perusal of sale agreement in question showed that in fact the accused had purchased the housing project and taken on all liabilities and responsibility to provide all facilities for the housing project and all other deeds to the allottees/purchasers---Record further revealed that more than 2500 plots were booked in the project but, only 563 sub leases had been executed to date---Large number of allottees had given their statements before police (with accompanying documents) to the effect that they made full payment for their plot but it had not been allotted to them---Furthermore the accused had admitted that he served on a number of occasions as Director of the company which owned the housing project and as such he was not always just a simple employee of the company throughout his long association with it and as such had direct liability for the acts and omissions of the company---Amount embezzled was a huge amount which could not be ignored---Certain aspects of the scam were of a civil nature but the scam equally fell under the National Accountability Ordinance, 1999 and could be prosecuted by the National Accountability Bureau---Sufficient evidence was available to connect the accused with the commission of the offence---Accused was refused bail accordingly.

Moiz Ahmed for Petitioner.

Noor Muhammad Dayo, Special Prosecutor, NAB for Respondent.

Date of hearing: 12th April, 2016.

2016 P Cr. L J 1331

[Sindh]

Before Ahmed Ali M. Sheikh and Muhammad Karim Khan Agha, JJ

MUHAMMAD AQEEL MUNAWAR ABRO---Petitioner

Versus

The STATE and another---Respondents

C.P. No. D-7850 of 2015, decided on 31st March, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi) & (b)---Bail, grant of---Statutory delay---Recovery of entire loss---Delay in conclusion of trial---Accused was arrested for misusing his authority which led to a loss to public exchequer---Reference was filed before Trial Court on 12-1-2015 but it could not be concluded at no fault of the accused---Validity---Accused was not responsible for delay in conclusion of trial---No material was placed before High Court to show that he was previously convicted offender for an offence punishable with death or imprisonment for life or a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---One of the co-accused had already entered into a plea bargain with National Accountability Bureau where the entire loss had been repaid---Accused was entitled to be released on bail on statutory delay---Bail was allowed in circumstances.

Asif Ali Zardari v. The State 1993 PCr.LJ 781; Allah Dino v. The State 2007 SCMR 1930; Mohammad Zareen and others v. The State PLJ 2009 Sh. C. (AJ&K) 105; Murad Usmani v. The State PLD 2012 Sindh 225; Jamila Durrani v. The State PLD 2003 Kar. 393; Asghar Masih v. The State 1995 PCr.LJ 544; Agha Jahanzeb v. NAB and others 2005 SCMR 1666; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; M. Idrees Ghori and others v. The State 2008 SCMR 1118; Muhammed Nadeem Anwar's case PLD 2008 SC 166; Pir Mazharul Haq v. The State PLD 2005 SC 63; Ali Nawaz Shah v. The State PLD 2003 SC 837; Syed Amanullah v. The State and others PLD 1996 SC 241; Manzoor and others v. State PLD 1972 SC 81; Ayub Masih v. State PLD 2002 SC 1048; Khan Asfandyar Wali v. State PLD 2001 SC 607 and Muhammad Nadeem Anwar's case PLD 2008 SC 645 ref.

Hamesh Khan v. NAB 2015 SCMR 1092 fol.

M.A. Kazi for Petitioner.

Noor Muhammad Dayo, ADPG, NAB for the State.

Date of hearing: 24th February, 2016.

2016 P Cr. L J 1371

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD RIZWAN AHMED and others---Applicants

Versus

The STATE---Respondent

Spl. Criminal Bail Applications Nos. 1244, 1245 and 1283 of 2015, decided on 27th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471, 472, 473, 474, 477-A, 109 & 34---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Offering, preparing, selling and issuing fake and bogus diplomas, degrees, certificates and accreditation certificates of fictitious schools, colleges and universities through fraudulent online system---Bail, refusal of---Case of prosecution was based on information retrieved from the computers---Alleged material i.e. fictitious certificates, different stamps and embossing machines had been recovered from the office wherein accused were working---Accused's voice recordings and voice transcripts had been secured in the investigation and had been analyzed by the forensic experts with the samples of their voices taken in investigation---Investigating agency had no enmity or ill-will against the accused to falsely implicate them in the present case---Every piece of evidence was available in Hard Discs Drives and CD---Collection of evidence through modern devices was relevant and admissible---Authenticity of such evidence at bail stage could neither be determined nor doubted---Deeper assessment of alleged material could not be undertaken at bail stage---Accused had not denied their association with the office charged with selling fake degrees---White-collar crime had been committed by the people who were computer savvy---Allegedly information so far retrieved from the computers was so huge that still the process of decoding and deciphering the same was going on---If accused were released on bail, they were likely to erode and erase entire information from the Cloud and main server--- Every crime case had its unique character and facts and had to be decided in the light of those facts---Bail was not right of the accused in non-bailable offences---Accused while asking for concession of bail was required to show that there was no evidence at all to connect him with the offence or evidence was such that it required further inquiry into his guilt---Sufficient material was available on record to connect the accused with the commission of offence---No case for bail in favour of accused was made out---Bail was refused to the accused in circumstances.

2016 SCMR 18; 2004 SCMR 1859; 2016 SCMR 274; PLD 2016 Lah. 130; 2012 SCMR 1732; PLD 2005 Kar. 128; 2009 PCr.LJ 1192 and 2015 PCr.LJ 1772 ref.

Shaukat Hayat, Anwar Mansoor Khan, Muhammad Yaseen Azad, Abid S. Zuberi and Aamir Mansoob Qureshi along with Ghulam Mustafa.

Salman Talibuddin, Additional Attorney General for Pakistan.

Muhammad Qasim, Standing Counsel.

Abdul Ghafoor D.D. Forensic Saeed D.D. FIA.

Date of hearing: 27th April, 2016.

2016 P Cr. L J 1398

[Sindh]

Before Shahnawaz Tariq, J

TABISH GAUHAR---Petitioner

Versus

The STATE---Respondent

Criminal Misc. Application No. 125 of 2011, decided on 14th November, 2014.

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

----S. 561-A---Penal Code (XLV of 1860), S. 319---Qatl-i-khata---Proceedings, quashment of---Scope---Contention of accused, who was an employee of Electricity Supply Company was that he was innocent and had been falsely implicated in the FIR as on the day of alleged incident, there were heavy rains which had paralyzed the life of city and caused major damage to the infrastructure of Electricity Supply Company which was an act of God and beyond control of employees of Electricity Supply Company---Complainant's plea was that there was rain on the day of incident but due to non-maintenance, there were broken electric wires at the place of incident and due to gross negligence of employees, fallen wires were not repaired for hours, hence, the accused was responsible for alleged offence qatl-i-khata as the son of complainant was electrocuted due to broken wires of electric pole---Validity---To meet the ends of justice, criminal proceedings could be quashed if it was apparent that it would not result in conviction or liabilities to be enforced were of civil nature---Accused could not save himself under the garb of act of God from his mandatory and essential responsibilities which he was bound to perform and ensure the level of repairing, overhauling and restoring of any possible damages caused to infrastructure of and object of the same was to minimize the apprehension of damage and ensure the safety of lives of general public---Responsibility for public safety which included welfare and protection of general public was not only limited to governmental responsibility but also to any private company involved in work of public nature---Act of God was an unavoidable and unpredictable event that resulted from occurrence of natural causes or forces which was entirely irresistible, uncontrollable and could not have been prevented by exercise of foresight or carefulness---For act of God to apply, it had to satisfy some basic conditions which included destruction caused by natural forces without any human involvement and making such occurrence impossible to be foreseen and prevented---High Court observed that there was no probability in accused being convicted and that complainant ought to have filed suit for damages---Application was allowed and proceedings under S. 319, P.P.C. were quashed, accordingly.

Moula Bux and others v. State PLD 2010 Kar. 204; Abdul Razzak Lashari and 3 others v. Government of Sindh and others 2015 YLR 1082; Maqbool Rehman v. The State 2002 SCMR 1076; Transco plc v. Stockport Metropolitan Borough Council 2003 UKHL 61 and Messrs Jahangir Services v. Mst. Bibi Rukhsana Begum PLD 1995 Kar. 329 rel.

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

----Ss. 249A, 265K & 561-A---Power of court to acquit the accused at any stage---Scope---Provisions of Ss. 249-A, 265-K & 561-A, Cr.P.C. should not normally be pressed into action for deciding the fate of a criminal case without conducting regular trial of the case---If from facts and circumstances of the case, it was crystal clear that trial would not be concluded in conviction of accused or complainant had initiated criminal proceedings to achieve civil liabilities, the aggrieved person could invoke jurisdiction of court for his acquittal at any stage of proceedings irrespective of whether charge had been framed or not.

(c) Criminal trial---

----Burden of proof---Onus to prove any version or claim lay upon shoulders of claimant by producing solid and confidence inspiring material and any claim based on surmises and conjunctures without sufficient proof would be contrary to law and facts.

(d) Words and phrases---

----"Act of God"---Connotation.

Abid S. Zuberi, Syed Khuram Nizam and Rasheed Ashraf Mughal for Applicant.

Mehmood A.H. Baloch for the Complainant.

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

Date of hearing: 23rd September, 2014.

2016 P Cr. L J 1417

[Sindh]

Before Ahmed Ali M. Shaikh and Mohammad Karim Khan Agha, JJ

MOHAMMAD AZAM BROHI and others---Petitioners

Versus

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

C.P. No.D-3219/2014, D-5739/2015, D-4552/2013, D-5865/2014 and D-7974/2015, decided on 30th March, 2016.

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

----Ss. 9(a) & 10---Criminal Procedure Code (V of 1898), Ss. 498---Corruption and corrupt practices---Pre-arrest bail, refusal of---Accused persons, officials of a co-operative society, in collusion with each other, had misused their authority by violating instructions of circular by Co-operative Department---Statements of the accused persons although had been recorded by the superseded management, which might cast doubt over their reliability, but other documentary evidence had corroborated the statements---Banking documents showed unjustified amounts having been transferred from the Bank accounts of the accused to the Bank accounts of the other accused person, which corroborated the illegalities committed by them---No explanation had been offered for opening the second Bank account of the Society in presence of existing account---Reasonable ground, therefore, existed to connect the accused with the offence---Other two accused persons, having already entered into a plea bargain, had admitted their guilt---Pre-arrest bail already granted to the accused person was recalled accordingly.

Muhammad Nadeem Anwar and another v. NAB and others PLD 2008 SC 645; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546 and Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 distinguished.

Dr. Allah Nawaz A. Qazi v. The State through Chairman NAB 2008 SCMR 196 and Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040 ref.

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

----Ss.23, 9 (a) & 10----Criminal Procedure Code (V of 1898), S. 497---Corruption and corrupt practices---Post-arrest bail, refusal of---One of the accused (official of co-operative society) had been charged with offence under S. 23 of National Accountability Ordinance, 1999, for enabling the sale of the plots, for which maximum sentence under S. 23 of the Ordinance was up to three years; therefore, present case prima facie fell within the rule laid down in Tariq Bashir's Case (PLD 1995 SC 34), which provided that grant of bail was rule---However, due to massive corruption and corrupt practices by means of embezzelement in the Society's accounts, selling/re-alloting of plots of the old members for personal gains, present accused along with other accused person in furtherance of common intention had acted in such manner which resulted in huge loss---National Accountability Bureau, after further investigation, had found present accused equally guilty of all the offences, which the other accused person had been charged with under the main Reference---Role of present accused was, therefore, not limited to violating of S. 23 of National Accountability Ordinance, 1999 and rather included all the other provisions of the Ordinance, which the other accused persons had been charged with in the main Reference---Reasonable grounds, therefore, existed to connect the present accused to the offence for which he had been charged under the Supplementary Reference along with the other accused persons in the main Reference of corruption under S. 9 (a) punishable under S. 10 of National Accountability Ordinance, 1999, which fell within the prohibitory clause of S. 497 (1), Cr.P.C.---Application for post arrest bail was dismissed accordingly.

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

----Ss. 9(a) & 10--- Criminal Procedure Code (V of 1898), Ss. 498--- Corruption and corrupt practices---Pre-arrest bail, refusal of---Medical ground, abuse of---Effect---Doctor, who had been called to assist the Court, informed the Court that the accused was fit enough to attend the Court proceedings---Accused had abused the extraordinary concession of pre-arrest bail for about two years---Pre-arrest bail already granted to the accused, therefore, was subject to recall on that account alone (remaining absent from the Court on false medical ground), apart from the merits of the case (which were also against the accused)---Pre-arrest bail was recalled accordingly.

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

----S. 9 & Preamble----Corruption and corrupt practices---Jurisdiction of National Accountability Bureau---Scope---Accused contended that present matter fell within the exclusive domain of Co-operative Soceities Act, 1925---National Accountability Ordinance, 1999 was a special law with overriding effect over other laws, and the same provided that transaction/act complained of falling within S. 9 of the Ordinance, Bureau had the jurisdiction over the matter and could proceed to inquire into the same.

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

----S. 9---Corruption and corrupt practices---High Court observed that cases of white collar crime are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs to be viewed in a holistic manner and not in isolation, because in most cases the offence cannot be committed without the active involvement of the accused person in the chain of events which leads to the commission of the offence.

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

----Ss. 497/498---Bail---Principles---In cases of bail, each of the accused, in some way, needs to be connected with the alleged offence, and in cases of non-bailable offences, reasonable ground should exist for believing that the accused is connected with the offence charged.

Ahmed Ali Ghumro for Petitioners (in C.Ps. Nos. D-3219/2014 and D-5739/2015).

Aziz-ur-Rehman Akhund for Petitioners (in C. P. No.D-4552/2013).

Mukesh Kumar Khatri for Petitioners (in C. P. No.D-5865/2014).

Mushtaq Ahmed Jahangiri for Petitioners (in C. P. No.D-7974/2015).

Noor Muhammad Dayo, ADPGA NAB. for Respondents.

Aslam Bhutta, Special Prosecutor NAB along with Waliullah, I.O. NAB.

Dates of hearing: 11th and 21st March, 2016.

2016 P Cr. L J 1457

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHAMIM AHMED KHAN---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Revision Application No. 15 of 2014, decided on 13th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K, 417(2) & 439--- Application against order of acquittal---Revision---Competence---Applicant had called in question order passed by the Trial Court, whereby accused persons were acquitted---Right of appeal against order of acquittal had been conferred to aggrieved person under S.417(2), Cr.P.C.---Section 439(5), Cr.P.C., contained prohibition to the effect that where right of appeal was provided; and no appeal was brought, no proceedings by way of revision was competent against order of acquittal---Applicant having failed to avail remedy of appeal provided under law, revision application against order of acquittal filed by applicant, was dismissed being not maintainable.

Zahoor Ahmad v. State PLD 2007 Lah. 231; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254; Mst. Mamoona Akhtar v. Magistrate Section 30, Wazirabad, District Gujranwala and 2 others 2005 MLD 896; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Jehangir Masih and others v. The State 2003 YLR 1785; Muhammad Aslam v. Ghulam Muhammad and another PLD 2004 Kar. 73 and Tehzeeb v. Wajid Mahmood alias Abdul Wajid and another PLD 1987 Pesh. 112 ref.

Muhammad Tamaz Khan and Sabir Shah for Applicant.

Mehmood Hubibullah and M. Fahim Zia for Respondents Nos.2 to 5.

Ali Haidar Saleem, Assistant Prosecutor-General, Sindh for Respondents.

Date of hearing: 12th February, 2016.

2016 P Cr. L J 1484

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Khadim Hussain M. Shaikh, JJ

ASIF ALI---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh Secretariat Karachi and 10 others---Respondents

C.P. No. D-280 and M.As. Nos. 2119 and 2120 of 2016, decided on 11th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 173---Investigation into cognizable cases---Reinvestigation after commencement of trial---Permissibility---In the present case, after investigation, report under S. 173, Cr.P.C. had already been submitted against all the six accused person, including present accused, and the trial court had taken cognizance of the case; present accused, along with two others, had been shown as absconders in the Challan, and proceedings for declaring them as proclaimed offenders had been commenced---During investigation, sufficient evidence had been collected against all the accused persons to proceed against them---Reinvestigation of the case after submission of the Challan and commencement of trial would not only be unwarranted, but the same would also create more complications in the administration of justice prejudicing the prosecution case---Constitutional petition was dismissed in circumstances.

Raja Rustam Ali Khan v. Muhammad Hanif and 6 others 1997 SCMR 2008; Muhammad Latif, ASI Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666 and Muhammad Yousaf v. The State and others 2000 SCMR 453 distinguished.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 rel.

Abdul Hameed Bajwa for Petitioner.

2016 P Cr. L J 1498

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

MUHAMMAD ALI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet and 5 others---Respondents

Constitutional Petition No. D-4499 and C.M.A. No. 12636 of 2015, decided on 20th January, 2016.

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

----Ss. 9, 18(a) & 24(a)---Embezzlement of Government funds and misusing official powers---Bail, grant of---Allegations against accused were that he misused his official powers, prepared false bills in the name of false persons; and deprived the National Exchequer of huge funds with collusion of Manager of State owned Bank---Investigating Officer of NAB, had not recovered the copies of alleged false bills allegedly prepared by accused---Investigating Officer, had neither collected evidence with regard to allegedly embezzled amount which was found in the account of accused, or in the account of his family member; nor there was any evidence to show that accused was living life beyond his source of income---No role had been assigned to accused with regard to the alleged offence of embezzlement of the amount---Entire case of prosecution revolved around documentary evidence, which was already in their possession---Accused was no more required for investigation---Co-accused had already been admitted to bail---Case against accused required further inquiry---Accused was granted bail, in circumstances.

Hassan Jameel Ansari and another v. National Accountability Bureau (NAB) and another 2012 YLR 2809; Nadeem Majeed v. The State 2007 SCMR 1958; Naseem Abdul Sattar and 6 others v. Federation of Pakistan and 4 others PLD 2013 Sindh 357; Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594; Ghulam Haider Jamro and another v. Chairman NAB 2007 YLR 541; Mrs. Riaz Qayyum v. The State and another 2004 SCMR 1889 and Dr. Mirza Raza Ali v. The State through Chairman National Accountability Bureau 2007 PCr.LJ 1088 ref.

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

----S. 497---Bail---Principles---While deciding bail application, only tentative assessment was to be made; and it was to be seen whether prima facie there existed any reasonable grounds against accused to connect him with alleged offence, which could fall within the prohibitory clause of S.497, Cr.P.C., or otherwise---Prosecution was to prove that there were reasonable grounds to believe that accused had committed the crime---Liberty of person was prime consideration as envisaged by laws; whereas subsection (1) of S.497, Cr.P.C., had prohibited the release of accused in certain conditions, which must be proved.

Fiaz H. Shah for Petitioner.

Muhammad Zubair Malik, Special Prosecutor NAB along with Masood Ahmed, Deputy Director NAB Sukkur/I.O. of the case.

Noor Hassan Malik, A.A.-G.

Date of hearing: 20th January, 2016.

2016 P Cr. L J 1514

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ANWER ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-149 of 2015, decided on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 324---Qatl-i-amd; attempt to commit qatl-i-amd; rioting, armed with deadly weapon; common object---Bail, grant of---Further inquiry---Rule of consistency---Mere recovery of crime weapon not sufficient to defeat the rule of consistency---Delay of twelve hours in registration of FIR not explained---Medico-Legal Report negated prosecution version---Question as to existence of common intention to be determined at trial---Parties were inimical to each other and the factum of the animosity had been reflected from the averments of the FIR---Trial Court had already granted bail to two co-accused while distinguishing the case of present accused due to recovery of Repeater from his possession, but mere recovery could not defeat the right of present accused to bail, as his case was at par with the case of the co-accused---Accused person had allegedly made straight fires with Kalashnikov and Rifle-222 upon the deceased, but the deceased had received only single bullet injury---Medico-Legal Report had confirmed that the deceased had neither sustained any pellet injury nor had any pellet been recovered during post-mortem---General allegations had been leveled against the accused persons, and no specific injury had been attributed to present accused---Question as to guilt of present accused for common intention was yet to be determined by the Trial court---Challan had already been submitted---State counsel raised no objection to the grant of bail---Bail application was allowed accordingly.

Rehmatullah v. Fazal Baqi and another 1998 SCMR 455 and 2011 SCMR 1606 ref.

Nisar Ahmed v. The State and others 2014 SCMR 27; Mohammad Iqbal v. The State 2011 SCMR 1943; Shahid v. The State 1994 SCMR 393 and Mohammad Haroon and another v. The State 1994 SCMR 2161 rel.

Irshad Hussain Dharejo and Rahim Dino Mahessar for Applicant.

Ghulamullah Memon for the Complainant.

S. Sardar Ali Shah, APG.

Date of hearing: 14th January, 2016.

2016 P Cr. L J 1568

[Sindh]

Before Naimatullah Phulpoto, J

JANAN---Appellant

Versus

The STATE---Respondent

Jail Appeal No.212 of 2014, decided on 28th August, 2015.

Criminal Procedure Code (V of 1898)---

----S.367---Foreigners Act (XXXI of 1946), Ss. 3, 4 & 14---Judgment---Points for determination--- Formulation of--- Scope--- Trial Court convicted and sentenced the accused under Ss. 3 & 4 read with S. 14 of Foreigners Act, 1946---Contention of accused was that Trial Court had not formulated points for determination the judgment---Validity---Trial Court should have recorded the evidence for the prosecution witnesses and after assessment of evidence and keeping in view the plea of accused should have decided the case---Accused had been convicted under Ss. 3 & 4 of Foreigners Act, 1946---Section 3 of Foreigners Act, 1946 was with regard to powers of Federal Government to make orders whereas S. 4 of the Act was with regard to Internees---Accused had been convicted and sentenced without mentioning the relevant subsection of S. 14 and only 5 years sentence had been awarded---Case having not been decided in accordance with S. 367, Cr.P.C. conviction and sentence were set aside and case was remanded to the Trial Court for passing the judgment in accordance with law.

Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad 2004 SCMR 1 rel.

Ajab Khan Khattak for Applicant.

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

Date of hearing: 26th August, 2015.

2016 P Cr. L J 1581

[Sindh]

Before Naimatullah Phulpoto and Muhammad Iqbal Kalhoro, JJ

ALI MUHAMMAD BUGHIO---Petitioner

Versus

Chaudhry HAMEEDULLAH, INSPECTOR ANTI-CORRUPTION ESTABLISHMENT, KARACHI and another---Respondents

C. P. No. D-2017 of 2013, decided on 22nd April, 2015.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 471, 409 & 477A---Constitution of Pakistan, Art. 199---Cheating, forgery, using as genuine a forged document, criminal breach of trust and falsification of accounts---Constitutional petition for quashment of proceedings---Alternate remedy---Scope---Contention of petitioner/accused was that there was no direct evidence against him to connect him in commission of the offence and he had been challaned for mala fide reasons---Prosecution's plea was that accused was head cashier and in collusion with Excise and Taxation officials, after receiving amount from tax payers, issued fake challans/endorsed excise stamp of Motor registration and did not follow legal procedure---Validity---Sufficient material had been collected against accused to connect him in commission of offence---Role assigned to accused had specifically been mentioned, in final report, the case had already been challaned and it was pending before competent court of law, where charge had already been framed---High Court observed that it was surprising that constitutional jurisdiction of High Court had been invoked without recourse to available remedies before Trial Court by making application under Ss. 249-A & 265-K, Cr.P.C. and as such it would be unfair to quash FIR/proceedings without trial--- No case for quashment of FIR/proceedings was made out---Constitutional petition was dismissed in circumstances.

Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 and Riaz Ali alias Rajoo v. The State 2011 YLR 997 rel.

Abdul Karim Junejo for Petitioner.

Rafiq Rajori, A.A.-G.

Abdullah Rajput, A.P.-G.

Inspector Waheed A. Kalwar, Anti-Corruption Establishment East Zone, Karachi.

2016 P Cr. L J 1598

[Sindh (Larkana Bench)]

Before Aftab Ahmed Gorar and Muhammad Shafi Siddiqui, JJ

ABDUL KARIM BROHI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-43 of 2012, decided on 27th August, 2014.

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

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Accused was arrested by the Excise police while he was trafficking eighty kilograms of Charas through truck---Accused could not point out any material discrepancy or contradiction in statements of the prosecution witnesses---Excise Inspector had fully supported the FIR version and recovery of Charas from the truck of the accused while he was driving the same---No enmity, ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate the accused; question of foisting the Charas was, therefore, out of consideration---Fact that the prosecution witnesses belonged to Excise police, alone could not be considered as valid reason to discard their evidence, especially when no mala fides or ulterior motives had been proved against them---Accused took the defence that he had come to the place of arrest for his medical treatment, but he had failed to produce any proof in that regard---Violation of S. 103, Cr.P.C. had no consequences in view of the exclusion of said provision by S. 25 of Control of Narcotic Substances Act, 1997---Accused was responsible for recovery of the entire recovered narcotics, as the report regarding samples taken out of the substance was in positive---In case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should have been overlooked in the larger interest of the country---Approach of court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases, if the case stood otherwise proved---Prosecution version appeared to be more genuine and based on common sense---Appeal was dismissed accordingly.

2009 YLR 507 and 1994 MLD 1493 rel.

Athar Abbas Solangi for Appellant.

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

Date of hearing: 27th August, 2014.

2016 P Cr. L J 1608

[Sindh (Sukkur Bench)]

Before Shahab Sarki, J

MUHAMMAD YOUSUF and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-169 of 2009, decided on 3rd April, 2015.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd and common intention---Appreciation of evidence---Confession---Pre-requisite--- Retracted confession--- Conviction on retracted confession---Scope---Accused persons were convicted and sentenced to rigorous imprisonment for life on the basis of confessional statement from which they retracted thereafter---Validity---Prosecution witnesses had not made any allegation against the present accused with regard to commission of offence---Only piece of evidence to connect the accused with the offence was alleged confessional statements recorded by them---If a conviction was to be based solely on confessional statement then court had to satisfy itself that same was voluntary, made promptly and had fulfilled the necessary pre-requisite---Accused should be informed and explained before recording confessional statement that whether or not he made the confession his custody would not be handed over to the police which had brought him there---Alleged confessional statements had been retracted by the accused---Corroboration in material particulars in cases of retracted confession was essential---Conviction could not be based solely on a retracted confession---No evidence had come against the accused in the present case---Contradictions between ocular and medical evidence were on record with regard to alleged time of death and time mentioned in the postmortem report---No corroboration of material particulars existed with the alleged retracted confessional statements---Prosecution was bound to establish its case beyond any doubt---Not only the confession was involuntary but same was also not corroborated by any single piece of evidence to connect the accused with the offence---Prosecution had failed to establish its case against the accused---Conviction and sentence awarded to the accused were set aside and they were acquitted of the charge---Accused should be released forthwith if not required in any other case---Appeal was allowed in circumstances.

Syed Azeem Shah v. The State PLD 1987 Quetta 96; Gangoram v. State 2003 PCr.LJ 1608; Danial Boyd (Muslim name Saifullah) and others v. The State 1992 SCMR 196; Zakir Khan and others v. The State 1995 SCMR 1793; Muhammad Tariq alias Tara and another v. The State 2009 SCMR 1260; Samiullah and another v. Jamil Ahmed and another 2008 SCMR 1623; Ashfaq Ahmed v. The State 2007 SCMR 641; Suleman v. The State 2006 SCMR 366 and Ghulam Qadir and others v. The State 2007 SCMR 782 ref.

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

----S. 164---Confession, recording of---Requirements---Accused should be informed and explained before recording confessional statement that whether or not he made the confession his custody would not be handed over to the police which had brought him there.

Amanullah G. Malik for Appellants.

Yar Muhammad Solangi for Respondent.

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

Date of hearing: 17th November, 2014.

2016 P Cr. L J 1616

[Sindh]

Before Naimatullah Phulpoto, J

NAJAMUDDIN SAMEJO and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous No. 9 and M.A. No.251 of 2015, decided on 19th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.489-F, 420 & 34---Application for quashing proceedings---FIRs were registered against applicants for dishonoured cheques---Applicants contended that since a civil suit for the same subject matter was pending before a civil court, therefore, initiating criminal proceedings at such point were mala fide and should be set aside---Validity---Prima facie, a case was made by the contents of FIR and documentary evidence and on the basis of the same, the applicant was found guilty by the Police authorities---Accused's contention of starting criminal proceedings at this point was devoid and of no use since criminal proceedings could not be quashed on the sole reason that civil proceedings were also initiated---Accused did not approach the Trial Court under S.249-A, Cr.P.C., but approached directly under S.561-A, Cr.P.C., which provision could not be used to override the express provisions of law to offer just another remedy, where a remedy already existed---Jurisdiction under S.561-A, Cr.P.C., was an extraordinary one and could only be used in extraordinary circumstances---Trial Court had already taken cognizance of the offence so interference at such point was not allowed, and there was sufficient evidence available on record against the accused---Application for quashing the proceedings was dismissed, in circumstances.

Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan PLD 2013 SC 401 ref.

Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan PLD 2013 SC 401 rel.

Muhammad Jamil for Applicants.

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

Ghulam Muhammad for the Complainant.

Date of hearing: 10th August, 2015.

2016 P Cr. L J 1635

[Sindh]

Before Abdul Rasool Memon, J

IRFAN ALI PIRZADO and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 331 of 2013, 1538, 2245, 1543, 1539, 1541, 1540, 1542 and 1544 of 2014, decided on 26th May, 2015.

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

----S.497(1)(ii)---"Hardened and desperate criminal"---Determination---Court is to determine by forming tentative assessment from material available on record.

Zulfiquar Ali and another v. The State 1990 PCr.LJ 822 rel.

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

----S. 497(1), proviso (ii) & (iii)---Penal Code (XLV of 1860), Ss. 220, 225-A, 446, 471 & 477---Prevention of Corruption Act (II of 1947), S.5(2)---Commitment for trial or confinement by person having authority who knows that he is acting contrary to law, omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise provided for; house-breaking by night; using as genuine a forged document; fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security; and misconduct---Bail, refused of---Hardened and desperate criminal---Forged release order---Releasing of criminal from jail---Accused persons were responsible officers/officials of Court and prison, who in league with each other knowingly about under trial prisoners/convicted prisoners and nature of their cases, illegally released them on the basis of fake release writs---Validity---By releasing such criminals under fake orders, accused persons were more dangerous than those who were released---High Court declined to extend benefit of proviso to S. 497(1), Cr.P.C. to accused persons who did not qualify for the grant of bail---Bail was declined in circumstances.

PLD 2012 Sindh 261 ref.

Imtiaz Ahmed v. State PLD 1997 SC 545 fol.

Abdul Mujeeb Pirzada and Syed Khalid Shah for Applicants (in Cr. B.As. Nos. 1538 and 2245 of 2014).

Madad Ali Shah Masumi for Applicant (in Cr. B.A. No. 1541 of 2014).

Abdul Rasheed Nizamani for Applicant (in Cr. B.As. Nos.1539 and 1543 of 2014).

Nemo for Applicants (in Cr. B.As. Nos.1540, 1542 and 1544 of 2014).

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

Date of hearing: 11th May, 2015.

2016 P Cr. L J 1658

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

YAQOOB alias LALA---Applicant

Versus

The STATE---Respondent

Cr. B.A. No. S-1144 of 2014, decided on 23rd December, 2014.

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

----S. 497---Sindh Arms Act (V of 2013), Ss. 2, 23(1)(a), 23A & 24---Possessing unlicensed pistol---Bail, grant of---Further inquiry---Section 23-A of Sindh Arms Act, 2013---Applicability of---While deciding bail application, lesser punishment was to be considered---Court could not legally add, subtract or even presume something which was not provided by plain words, used in a statute---According to S. 2 of Sindh Arms Act, 2013 legislature had deliberately classified the terms 'arm' and 'firearm' therefore, such classification could not be legally taken as redundant or without any object or purpose nor one would be justified in excluding a specified thing from one classified category to another as it would amount to making the key-term redundant which Court was not competent---Term 'holding/possessing an unlicensed arms' could be for no other purpose but 'unlawful purpose' because knowingly possessing unlicensed weapon in itself was unlawful, therefore, the classification of arms and firearms provided by the Act itself could not be brought to redundancy---One who was found in possession of unlicensed arms could be punished under S. 24 of Sindh Arms Act, 2013---Recovery of unlicensed pistol would fall within meaning of S. 24 of Sindh Arms Act, 2013 hence application of S. 23-A of Sindh Arms Act, 2013 required further probe---Court was not precluded from applying proper section while framing charge or passing judgment because ingredients of offence mattered and not mere mentioning of section in column of FIR or Challan---Bail was granted, accordingly.

Case-law rel.

(b) Interpretation of statutes---

----Key terms in a statute---Definition---Key-terms were always to be taken as deliberate one by legislature, hence, should always be given their due meaning and weight and such key-terms, would be required to be given the same meaning as the said statute/Act itself defined.

Ghulam Nabi Panhwar for Applicant.

Syed Meeral Shah, D.P.G. along with ASI, Syed Irshad Hussain on behalf of SSP, Hyderabad for the State.

Date of hearing: 15th December, 2014.

2016 P Cr. L J 1682

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

BASHIR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 402 and Confirmation Case No. 12 of 2011, decided on 4th March, 2016.

Penal Code (XLV of 1860)---

----S. 302(a)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Accused was alleged to have murdered his wife and daughter-in-law by inflicting Churri/knife injuries on their bodies---Evidence of the prosecution witnesses was consistent on all the material points, that were date, time and place of occurrence and dead bodies lying in the flat of the accused and arrest of the accused while he was having Churries in his hands and wearing bloodstained clothes---Independent witness, neighbour of the accused, was also available, who had fully supported the prosecution version, and being natural witness, his evidence was confidence inspiring---Medical evidence had also corroborated the complainant's version as well as that of the prosecution witnesses---Defence had failed to show as to why two real sons would depose against their real father in the double murder case---Mere relationship of the prosecution witnesses with the deceased was no criteria to discard their testimony, and they could not be termed as the interested witnesses in absence of any motive for falsely implicating the accused---Complainant, in his statement under S. 154, Cr.P.C. had categorically stated that the accused had committed murder of the deceased on account of suspicion---Existence of motive was not necessary for determining and awarding adequate sentence to a accused involved in capital offence---Factors such as motive, advanced age of the accused, his sick health, etc. were not convincing enough to set aside the conviction of the accused; however, the same could be taken into consideration while determining the quantum of sentence---In the present case, the motive remained shrouded in mystery, and what had happened immediately before the incident was not certain---Accused had mentioned in his statement under S. 342, Cr.P.C. that he was 77 years of age and suffering from various diseases, which had not been controverted by the State counsel---Said factors were regarded as mitigating circumstances for lesser penalty---Single stance providing mitigating or extenuating circumstance would be sufficient to award lesser punishment---Minor discrepancies although existed in the prosecution evidence, but the same had to be ignored and no importance could be attached thereto---High Court converted the sentence of death into life imprisonment.

Mohammad Akram v. The State 2009 SCMR 230; Akhtar Ali and others v. The State 2008 SCMR 6; The State v. Abba Ali Shah alias Abba Umer and another PLD 1988 Kar. 409; Hamzo and 2 others v. The State 1972 PCr.LJ 478; Mohammad Jamil v. Mohammad Akram and others 2009 SCMR 120; Mohammad Arif v. The State 2006 PCr.LJ 1827; Ashiq Hussain v. The State 1993 SCMR 417; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Umar Said and 2 others v. The State PLD 1994 SC 255; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Mohammad Khan and another v. The State 1999 SCMR 1220 and Abdul Sattar and others v. The State 2002 PCr.LJ 51 distinguished.

Mohammad Iqbal v. The State 1999 SCMR 403; Mohammad Afzal and 3 others v. The State 1999 SCMR 1991 and Dil Bagh Hussain v. The State 2001 SCMR 232 ref.

Amal Sherin and another v. The State PLD 2004 SC 371; Haji v. The State 2010 SCMR 650; Raqib Khan v. The State 2000 SCMR 163; Mukhtar Ahmed v. The State PLD 2004 SC 563; Mohammad Attique v. The State 2011 SCMR 1378; Dilawar Hussain v. The State 2013 SCMR 1582; Ghulam Mohy-ud-Din v. State 2014 SCMR 1034; Hassan v. State PLD 2013 SC 793; Mohammad Sarwar @ Saru v. The State 2016 SCMR 210; Abid Hussain v. The State PLD 1994 SC 641; Naubahar v. The State 1999 SCMR 637; Abid Ali and others v. The State 1995 PCr.LJ 834; Mohammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313; Khalid alias Khaldi v. The State 2003 PCr.LJ 638; Ehsan Sharif v. The State 2005 YLR 639 and Mehboob Sultan and 2 others v. The State and others 2001 SCMR 163 rel.

Shahid Mushtaq for Appellant.

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

Date of hearing: 17th February, 2016.

2016 P Cr. L J 1706

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

MOUR and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-53 of 2011, decided on 4th July 2016.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 427---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damages---Appreciation of evidence---Benefit of doubt---Firing allegedly continued for ten minutes in between accused persons and Police party, who were armed with automatic and semi-automatic weapons, but none from either side sustained any injury in the incident---Police constable who claimed having identified accused persons on the glimpse of head-light of Police mobile in the pitch of dark night, disclosed names of accused persons with parentage and addresses, was not examined before the Trial Court---Non-production of such witness in the court, itself had created material flaw on the prosecution case---Accused persons, after their arrest, having not put to identification parade, their identification in court after about one year, carried no value---Gun allegedly recovered from accused, and empties of .12 bore recovered from place of wardat, neither were sealed at wardat, nor were put to Forensic Science Laboratory and no report qua matching the same with any crime empties collected from place of wardat was on record---Mere recovery of gun from accused and empties from wardat, would not improve the case of prosecution---Roznamcha entry, regarding departure of Police from Police Station, was not produced at the time of recording of their evidence, which had created doubt regarding departure of Police from Police Station---Material contradiction, in evidence of prosecution witnesses, made the case of prosecution doubtful---Prosecution, having failed to bring home the guilt of accused persons, benefit of said doubt, was to be extended in favour of accused persons---Accused were acquitted, in circumstances.

Long through Superintendent, Central Prison Hyderabad v. The State 1999 PCr.LJ 595 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Shafique Ahmed Laghari holding brief on behalf of Sadaruddin for Appellants, along with Appellants.

Sardar Ali Shah APG for the State.

2016 P Cr. L J 1722

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD NADEEM KHAN---Applicant

Versus

MUHAMMAD HUSSAIN SHORO and 6 others---Respondents

Criminal Revision Application No. S-194 of 2015, decided on 5th May, 2016.

Illegal Dispossession Act (XI of 2005)---

----Ss. 2(c), 3 & 7---Illegal dispossession---Proof---Restoration of possession---Pre-conditions---Complainant alleged that he was owner of land in question and sought recovery of the possession but complaint was dismissed by Trial Court---Validity---For attracting provisions of Illegal Dispossession Act, 2005, and in order to get benefit of S. 3(1) of Illegal Dispossession Act, 2005, complainant had to prima facie establish before Court that he was lawful owner or was occupier of subject property and accused entered into or upon the property without having any lawful authority---Complainant was also to prove that accused had done so with the intention to dispossess or to grab or to control or to occupy property in question---Order as an interim relief regarding restoration of possession of subject property to complainant under the provisions of S. 7 of Illegal Dispossession Act, 2005, pending trial could only be passed when prima facie it was established to the satisfaction of Court that complainant was a lawful owner of subject property and he was illegally and forcibly dispossessed by accused and accused was in unlawful possession of subject property---Prima facie, possession of complainant over subject property could not be established as no evidence or any document had been produced by complainant to establish that he was occupier of subject property within the meaning of S. 2(c) of Illegal Dispossession Act, 2005---In absence of any material establishing possession of complainant, his plea of lawful possession of subject property was not tenable---High Court declined to interfere in its revisional jurisdiction as no jurisdictional infirmity or any illegality was pointed out in the order passed by Trial Court---Revision was dismissed in circumstances.

Zulfiqar Ali Abbasi for Applicant.

Noor-ul-Amin Sipio for Respondents Nos.1 to 3.

Shahid Ahmed Shaikh, A.P.G for Respondents Nos.4 to 7.

2016 P Cr. L J 1737

[Sindh]

Before Salahuddin Panhwar, J

The DEPUTY DIRECTOR, DIRECTORATE OF INTELLIGENCE AND INVESTIGATION-IR---Applicant

Versus

SAJID HUSSAIN---Respondent

Spl. Cr. Misc. Application No. 283 of 2014, decided on 10th March, 2016.

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

----S. 497---Sales Tax Act (VII of 1990), Ss. 33 (3), (5), (8) (11c) (13) (16) (18)--- Issuance of fake/bogus sale tax invoice---Bail, recalling of---Alleged offence was against the society as a whole---Discretion of bail in favour of accused should not be exercised in white collar crimes---Non falling of offence within prohibitory clause of S. 497(1), Cr.P.C. would become immaterial in such like cases---Accused had caused loss of hundreds of million of rupees to government exchequer---Accused was bound to show that he had no link with the offence even if material collected by the prosecution was tentatively taken as correct---Accused was involved in issuing fake/bogus sale tax invoices---One should not be entitled for an exception to an illegal act merely for reason that he had acted on instructions of others---Sufficient material was available to believe that accused was involved with the commission of offence with which he was charged---Accused was not entitled for grant of bail in circumstances---Impugned order passed by the Special Court was set aside and bail granting order was recalled---Accused was directed to surrender before the Trial Court which should conclude the trial within a period of three months.

1971 SCMR 637; 1976 PCr.LJ 324; 1990 PCr.LJ 340 and 2012 PCr.LJ 1722 ref.

Nasir Khan v. Waseel Gul and another 2011 SCMR 710; Imtiaz Ahmed v. State PLD 1997 SC 545; Nisar Ahmed v. State and others 2014 SCMR 27; Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 and Muhammad Yousuf v. PC Abdul Lateef Shar 2012 SCMR 1945 rel.

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

----S. 497---'Further inquiry'---Connotation.

Syed Mohsin Imam Rizvi for Applicant.

Arshad Lodhi for Respondent.

2016 P Cr. L J 1754

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ABDUL GHAFOOR---Applicant

Versus

The STATE---Respondent

Cr. B. A. No. S-97 of 2015, decided on 9th September, 2015.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Delay in lodging of FIR---Complainant had neither promptly lodged the FIR nor approached the higher authorities regarding missing of his son and had first approached the accused persons, who allegedly confessed the commission of murder of the deceased (son of complainant) and disclosed the place of the incident and availability of dead body---Said circumstances required serious considerations---FIR had been lodged with delay of nine days without any plausible explanation---Factum of animosity between the parties over the land and their strained relations were reflected from the contents of the FIR--- Allegations of sharing of common intention had been levelled against present accused, which were to be determined by the trial court after recording of evidence of witnesses---Prosecution had not disclosed the names and description of two other unidentified person who had accompanied the accused persons when the deceased had been called from his house---Challan had already been submitted and charge framed---Bail was allowed accordingly.

2011 SCMR 1543; 2014 YLR 695; PLD 1994 Kar. 431; 2000 SCMR 1784; 1998 PCr.LJ 746; 1990 SCMR 579; NLR 2005 Criminal 77; 2002 PCr.LJ 1114 and 2009 YLR 38 ref.

Muhammad Amin v. State 2000 SCMR 1784 rel.

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

---S. 497(2)---Bail---Further inquiry---Last seen evidence---Scope---Case fell within the canvass of further inquiry under S. 497(2), Cr.P.C., when the last seen evidence was neither reliable nor natural and allegation of animosity was general in nature.

Muhammad Amin v. State 2000 SCMR 1784 rel.

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

----S. 497----Bail---Principles---Bail cannot be withheld as punishment and accused cannot be confined in jail for an indefinite period.

(d) Criminal Trial---

----Last seen evidence----Proof and evidentiary value---Last seen evidence is not sufficient to maintain the charge of murder against the accused---Allegations of last seen must be corroborated with further strong evidence to prima facie connect the accused with the commission of the alleged offence.

Muhammad Amin v. State 2000 SCMR 1784 rel.

Ali Raza Kalwar for Applicant.

Abdul Rasheed Kalwar for the Complainant.

Abdul Rehman Kolachi, APG for the State.

2016 P Cr. L J 1777

[Sindh (Hyderabad Bench)]

Before Syed Muhammad Farooq Shah, J

JAMIA DARUL ULOOM ISLAMIA through President/Chairman---Applicant

Versus

ILYAS and others---Respondents

Criminal Revision Application No. S-237 of 2014, decided on 27th August, 2015.

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

----Ss. 3 & 4---Illegal possession of property---Complaint, filing of---Land grabbers---Applicant-complainant filed complaint which was dismissed by the Trial Court---Contention of applicant-complainant was that he was owner/legal occupier of disputed property---Validity---Predecessor-in-interest of applicant-complainant was allowed to construct a religious institution on temporary basis---Illegal Dispossession Act, 2005 had been promulgated to discourage the land grabbers and protect the right of lawful owner and lawful occupant of the property---Applicant-complainant was not an "aggrieved person" and even he was not authorized by the Management Committee of the institution to file proceedings against the accused---Aggrieved person might avail other adequate remedy provided by law to establish his title over the property and thereafter to protest any ingress or illegal encroachment thereto---Applicant-complainant had failed to produce any document showing his lawful ownership over the disputed property---Revision was dismissed in circumstances.

Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066; Muhammad Usman S. Memon v. IVth Additional District and Sessions Judge PLD 2011 Kar. 624; Allah Ditto v. Muhammad Ishaq 2013 YLR 1580; Abdul Qahir v. Bibi Aisha PLD 2012 Bal. 189 and Gul Hassan v. Muhammad Usman 2012 PCr.LJ 268 ref.

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

----S. 3---Complaint, filing of---Requirement---Complainant had to allege and show before the court that he was the actual owner or occupier i.e. in lawful possession of immovable property and accused had entered into the said property without any lawful authority.

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

----Preamble---Illegal Dispossession Act, 2005 had been promulgated to discourage the land grabbers and protect the right of lawful owner and lawful occupant of the property.

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

----S. 439---Revisional jurisdiction of High Court---Scope---High Court could not resolve disputed question of facts under its revisional jurisdiction.

Rana Suhail Mehmood for Applicant.

Anwar Jamal for Respondents Nos.1 to 3.

Shahid Ahmed Shaikh, A.P.-G.

2016 P Cr. L J 1804

[Sindh]

Before Nazar Akbar, J

Haji JAVED AHMED JATOI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.441 of 2005, decided on 16th May 2016.

Penal Code (XLV of 1860)---

----Ss. 161, 220, 223, 409 & 420---Prevention of Corruption Act (II of 1947), S. 5(2)--- Pakistan Criminal Law Amendment Act (XL of 1958), S. 6(5)---Sindh Enquiries and Anti-Corruption Act (VIII of 1991), S. 3---Sindh Enquiries and Anti-Corruption Rules, 1993, R.11(4) & (5)---Constitution of Pakistan, Arts. 4 & 13---Illegal gratification, acting contrary to law, escape from custody, criminal breach of trust and cheating---Sanction for prosecution---Double jeopardy, principle of---Accused was a police official who was convicted by Trial Court and sentenced to various terms of imprisonment extending upto three years along with fine---Plea raised by accused was that trial was conducted without seeking mandatory prior sanction for prosecution of government servant---Validity---Accused had already served the term of punishment awarded to him by Trial Court---Prosecution could not be directed to prosecute accused again after obtaining proper sanction from competent authority or to apply any formal method afresh to bring irregularities in earlier trial within parameters of relevant law---Such would be violative of fundamental rights guaranteed to accused under Art. 13 of the Constitution, whereby he was protected against prosecution or punishment for the same offence once again and was also a violation of Art. 4 of the Constitution, as accused was not dealt with in accordance with law i.e. Pakistan Criminal Law Amendment Act, 1958, and Sindh Enquiries and Anti-Corruption Act, 1991 and Sindh Enquiries and Anti-Corruption Rules, 1993---High Court directed the authorities to refund amount of fine to accused as the same was reversible but term of sentence already served could not be reversed---Appeal was allowed accordingly.

Federation of Pakistan v. Zafar Ahmed PLD 2005 SC 19; Zafar Awan v. The Islamic Republic of Pakistan PLD 1989 FSC 2004; Rashid Ahmed v. the State PLD 1972 SC 271; Syed Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 464; Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC 72; M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 and Raja Mir Muhammad v. The State 2004 SCMR 506 ref.

H.Q. Halepota for Appellant.

Mrs. Akhtar Rehana, APG for Respondent.

2016 P Cr. L J 1821

[Sindh]

Before Naimatullah Phulpoto and Ghulam Qadir Leghari, JJ

MUHAMMAD ZAHIR and another---Appellants

Versus

SHAH SAEED and 2 others---Respondents

Criminal Acquittal Appeal No.95 of 1995, decided on 25th May, 2016.

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

----Ss. 302, 307 & 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---Cross version---Trial Court, having elaborately discussed each and every point involved in the case, had observed that the allegations were general in nature, and material contradictions in the prosecution evidence with regard to the manner of the incident existed---Improvements had been made by the prosecution witnesses to strengthen the prosecution case---Prosecution witness had deposed that the deceased had died on his way to the Hospital; whereas, the medical witness had deposed that the deceased had been brought to the Hospital in an injured condition and he died later---Many people were alleged to have gathered on the spot at the time of the incident, but the prosecution had not examined any independent witness---Eye-witnesses had not been able to establish their presence at the time of the incident---Prosecution, being closely related to the deceased, were interested witnesses, whereas, independent corroboration lacked in the case---Both parties, as per the counter version, had sustained injuries during the incident---More number of injuries sustained by the deceased could not be sufficient to hold that the accused were the aggressors, particularly, when there was no evidence of aggression on their part---Possibility, that the accused persons had acted in their self defence, therefore, could not be ruled out---Accused persons, in view of the circumstances of the case, were entitled to the benefit of doubts as a matter of right---Impugned judgment of acquittal was based on correct appreciation of the evidence and application of the law---Appeal against acquittal was dismissed accordingly.

Manzoor Masih v. The State PLD 1995 SC 307 ref.

Ahmed Usman and 2 others v. The State 1992 SCMR 489; Tariq Pervaiz v. The State 1995 SCMR 1345; Mirza Noor Hussain v. Farooque Zaman and 2 others 1993 SCMR 305 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 rel.

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

----Ss. 417(2-A) & 410---Appeal against acquittal/appeal against conviction---Appreciation of evidence---Marked difference exists between appraisement of evidence in the appeal against conviction and appeal against acquittal---In appeal against conviction appraisal of evidence is done strictly, whereas, in appeal against acquittal, the same rigid method of appraisement is not applied, as there are already findings of acquittal given by trial court after proper analysis and appreciation of evidence on record.

Ahmed Usman and 2 others v. The State 1992 SCMR 489 rel.

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

----Ss. 417(2-A) & 410---Appeal against acquittal/appeal against conviction---Scope---In appeal against acquittal, interference is made by the court only when there has been gross misreading of evidence, which amounts to miscarriage of justice---In appeal against acquittal, the Court would not, in principle, ordinarily, interferes, and instead, the Court would give due weight to the findings of the court acquitting the accused---Court would not interfere with the acquittal merely because after re-appraisement of evidence the Court comes to the conclusion different from that of court acquitting the accused, provided that both the conclusions are reasonably possible.

Ahmed Usman and 2 others v. The State 1992 SCMR 489 rel.

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

----Ss. 417(2-A) & 410---Appeal against acquittal/appeal against conviction---Scope---Scope of appeal against acquittal is considerably narrow and limited---Criteria laid down for appeal against acquittal is entirely different than the criteria of hearing appeal against conviction---Accused, in appeal against acquittal, earns double presumption of innocence: one before the trial and the other after acquittal---Complainant, for reversal of acquittal of accused, has to bring on record that the evidence on record has not been properly considered and the order of trial court is fanciful, perverse and not in accordance with law.

Ahmed Usman and 2 others v. The State 1992 SCMR 489 and Mirza Noor Hussain v. Farooque Zaman and 2 others 1993 SCMR 305 rel.

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

----Ss. 417(2-A) & 410---Appeal against acquittal/appeal against conviction---Principles---Principles of appeal against conviction and appeal against acquittal are altogether different---On examination of an order of acquittal as a whole, credence should be accorded to the findings of trial court.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 rel.

Fazal Rahim Yousuf Zai for Appellants.

Haroon Shah for Respondents.

2016 P Cr. L J 1846

[Sindh]

Before Syed Muhammad Farooq Shah, J

ADAMJI---Appellant

Versus

MUHAMMAD FAROOQ and another---Respondents

Criminal Acquittal Appeal Nos.86 and 186 of 2013, decided on 25th January, 2016.

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

----Ss. 420 & 489-F---Criminal Procedure Code (V of 1898), S. 417---Cheating and dishonoring of cheque---Appeal against acquittal---Appreciation of evidence---Parties had business relations and accused issued cheques as security---Trial Court acquitted the accused of the charge---Validity---Order/judgment of acquittal gave rise to strong presumption of innocence rather double presumption of innocence was attached to such an order---While examining the facts in order of acquittal, substantial weight should be given to the findings of Lower Courts, whereby accused was exonerated from the commission of crime---No improbability or infirmity existed in the judgment of acquittal recorded by Trial Court as the same was based on sound and cogent reasons which did not warrant any interference by High Court---High Court maintained the judgment of acquittal passed by Trial Court--- Appeal was dismissed in circumstances.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

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

----S. 417---Appeal against acquittal---While examining the facts in order of acquittal, substantial weight should be given to the findings of Lower Courts, whereby accused was exonerated from the commission of crime.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

Appellant in person (in both Appeals).

Respondents Nos.1 and 2 in person.

Muntazir Mehdi, Assistant Prosecutor-General, Sindh.

2016 P Cr. L J 1860

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

GULSHAN SHAIKH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-74 of 2010, decided on 19th May, 2016.

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

----Ss. 9(c), 9(b) & 29---Criminal Procedure Code (V of 1898), Ss. 103 & 342---Possession, import or export, trafficking or financing of narcotic substance--- Appreciation of evidence---Sentence, reduction in---Accused had been arrested and five kilogram of Charas was recovered from him in presence of Mashirs---Prosecution witness had supported the prosecution case---Report of Chemical Examiner had confirmed that the recovered substance was Charas---Accused could not bring any material contradictions between the prosecution witnesses or their ill-will or enmity---Delay in sending the incriminating article to the Chemical Examiner could not be treated as fatal and minor lapses in investigation did not affect the validity of the trial, particularly when the defence had not cross-examined the prosecution witnesses in respect of the same---Accused had not taken the objection as to non-production of original departure and arrival entries and overwriting over the arrival entry at the time when the attested copies of the entries had been exhibited---Overwriting as to arrival time in the entry was not very much material, as the same would be on account of inadvertence and the same was in consonance with the time mentioned in the FIR, and as such the same did not create doubt in the prosecution case---Under S. 29 of Control of Narcotic Substances Act, 1997, there was presumption of possession of narcotic substance against the accused, unless the same was rebutted by way of major contradictions, material irregularity or illegality, mala fide and proof of enmity---Present case, therefore, stood proved against the accused to the hilt leaving no room to doubt the veracity of the statements of the prosecution witnesses, who had not been questioned about their ill-will or animus with the accused for his false involvement in the matter---Accused had only denied the prosecution allegation in his statement under S. 342, Cr.P.C. and had not been able to disprove anything in respect of his defence or mala fide on part of the prosecution---Simple denial of the charge and pleading innocence, without any cogent and convincing evidence did not entitle the accused for his acquittal---Five packets of Charas had been allegedly recovered containing Charas of one kilogram each, out of which one consolidated sample had been taken, which weighed one kilogram---In absence of separate sample from the five each packets of Charas, only one kilogram of Charas was to be considered to have been recovered from the accused, and he could have been convicted and punished for the same accordingly---High Court, converting the conviction under S. 9(c) Control of Narcotic Substances Act, 1997 into conviction under S. 9(b) of the Act, reduced the sentence of imprisonment for five years to imprisonment for one year and nine months along with fine---Appeal against conviction was disposed of accordingly.

2004 YLR 1303; 1998 PCr.LJ 2008; 1999 PCr.LJ 391; PLD 2001 Pesh. 152; 1997 SCMR 1494; 2012 SCMR 577l; 2011 SCMR 820; 2012 PCr.LJ 1927; 2012 MLD 1763; 1995 SCMR 1793; PLD 2004 SC 663; 2005 SCMR 1958 and 2008 MLD 314 ref.

Muhammad Younus v. Mst. Parveen 2007 SCMR 393; Fida Jan v. The State 2001 SCMR 36; Zulfiqar Ahmed v. The State 2006 SCMR 800; Muhammad Khan v. The State 2008 SCMR 1616; Tarique Mehmood v. The State PLD 2009 SC 39; Abdul Majeed v. The State 2008 MLD 314; Gul Alam v. The State 2011 SCMR 624; Sherzada v. State 1993 SCMR 149; Muhammad Noor v. The State 2010 SCMR 927; Ameer Zaib v. The State PLD 2012 SC 380; Ghulam Murtaza v. The State PLD 2009 Lah. 362 and Abdul Hameed v. The State 2016 SCMR 707 rel.

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

----Ss. 21 & 22---Search---Accused raised the objection that the complainant of the case was ASI and not the Inspector, as required under Ss. 21 & 22 of Control of Narcotic Substances Act, 1997---Adherence to Ss. 21 & 22 of Control of Narcotic Substances Act, 1997 was not an absolute rule to follow in extreme urgency/prompt action.

Muhammad Younus v. Mst. Parveen 2007 SCMR 393 and Fida Jan v. The State 2001 SCMR 36 rel.

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

----S. 25----Criminal Procedure Code (V of 1898), S. 103---Search and arrest---Accused raised the objection that private person had not been associated as Mashir---In view of S. 25 of Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C. had been excluded in narcotics case---Evidence of the prosecution witness could not be discarded simply on the ground of violation of S. 103, Cr.P.C., which was not mandatory.

Zulfiqar Ahmed v. The State 2006 SCMR 800 and Muhammad Khan v. The State 2008 SCMR 1616 rel.

Altaf Hussain Surahio for Appellant.

Ali Haider Saleem, APG for the State.

2016 P Cr. L J 1874

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

ABDUL MAJEED---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others---Respondents

Constitutional Petition No.D-198 of 2016, decided on 3rd May, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iii)(vi)(xii) & (b)--- Criminal Procedure Code (V of 1898), Ss. 497 & 498---Bail, grant of---Further inquiry---Illegal pecuniary advantage---Private Bank---Petitioner was a Bank official and arrested by National Accountability Bureau on a complaint by manager of a private Bank that he, along with co-accused persons, misused their authority and misappropriated/embezzled funds of bank by illegally opening an imprest account---Validity---Fact that as to how much amount landed in pocket of petitioner as beneficiary was not highlighted---No loss was caused to public exchequer as matter pertained to a private Bank---Company in whose favour purported fake Letters of Guarantee were issued also did not come forward with their claim or complaint---Validity of Letters of Guarantee had expired---Under instruments, no fiscal fraud of cheating was committed---Prosecution had to still prove its case before Trial Court and therefore, case fell within established ingredients for grant of bail, as it was a case of further inquiry in order to prove guilt of petitioner---Principles of grant of bail under Ss. 497 & 498, Cr.P.C., were applicable to proceedings of the nature therefore, High Court granted bail to petitioner--- Constitutional petition was allowed in circumstances.

Zulfiqar Ali Naich for Petitioner.

Rabait Ali Bhanbhro, SPP, NAB Sukkur for Respondents.

2016 P Cr. L J 1888

[Sindh]

Before Zulfiqar Ahmad Khan, J

IMRAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.524 of 2016, decided on 30th May, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376, 375, 337-A(i), 506, 34 & 90---Rape; Shajjah-i-khafifah; criminal intimidation; common intention---Bail, refusal of---'Will' and 'consent'---Meaning---'Against her will'/'without her consent'---Interpretation---'Consent' known to be given under fear of misconception---Effect---'Consent' obtained through fraud or deception---Effect---Positive DNA report based on two months old vaginal swab samples---Probative force---'Sexual intercourse'---Meaning---Injury to genitals and semen stains not necessary/mere penetration was sufficient to constitute offence of rape---Sole testimony of victim of rape, evidentiary value of---Under special provisions of S. 376, P.P.C., 'will' and 'consent' had been differentiated, which meant that even if there was 'will' but no 'consent' or vice versa, offence of rape would be actualized---Word 'will' implied the faculty of reasoning power of the mind that determined whether or not to do an act---First ingredient 'against her will' was related to the psychological state of the victim (as compared to 'without her consent', which referred to actions and performative (enacted as said/commanded))---Fine distinction existed between an act done 'against her will' and an act done without consent ('without her consent')---Every act done 'against her will' was 'without the consent', but every act 'without her consent' was not 'against her will'---Section 376(i), P.P.C. applied where the woman was both in her senses and capable of consenting---Expression 'against her will' ordinarily meant that the intercourse was done by a man with a woman despite her resistance and opposition---Evidence available on the record showed that the victim was not a consenting party, and the rape had been committed 'against her will'---Term 'consent' as used in S. 376(ii), P.P.C. meant 'an act of reason, accompanied with deliberation, the mind weighing in a balance, the good and evil on each side'---'Act done with consent' always meant that the act was done with free will or voluntarily---In the present case, the victim's consent for taking her out of her house had been obtained on the basis of some past friendship or allurement with the hidden intent; therefore, victim's consent was either tainted or based on deception and fraud---Had the victim known that she would be raped, she would not have left her house with the accused---Victim had left her house with the accused due to the fraud and deception practised on her; therefore, her consent could be held to be the consent 'without her consent'---Consent obtained by deceitful means was no consent in terms of S. 376, P.P.C., and the same not only came within the ambit of the ingredients of the definition of rape but qualified the exception provided for under S. 90, P.P.C. being a 'vitiated consent' given under a 'misconception of fact'---DNA Laboratory Report although provided that 'no human male DNA profile was identified in the vaginal swab', but said Report showed that vaginal swab samples presented to the Laboratory were more than two months old, and that was not sure as to how those samples had been preserved during such a long period of time, since the external factors (such as temperature and humidity), and internal factors (other bodily fluids) had affected the validity of the samples---Earlier the sample had been collected and tested, the higher would have been the chances of yielding solid results---DNA testing from vaginal swabs could reliably lead to an offender only if the sample was tested within the first 7 days of the rape---Foul play was also evident from the fact that the DNA Report suggested that the swab samples had been consumed, leaving no opportunity to challenge the results shown in the Report---Penetration was sufficient to constitute the 'sexual intercourse' necessary to constitute the offence of rape without producing any injury to the genitals or leaving any seminal stains---Testimony of the victim in rape cases was of vital significance, and unless compelling reasons existed which necessitated looking for corroboration of her statement, the Court ought not to find any difficulty in convicting the accused on victim's testimony alone---Victim was neither willing nor had she consented for the sexual act, which had been forced upon her by the accused; therefore, necessary ingredients of S. 376, P.P.C. had been satisfied---Accused belonged to a relatively influential class, and if he was released on bail at present stage, he was likely to intimidate or influence the victim and/or the witnesses---Bail application was dismissed accordingly.

2007 SCMR 605; PLD 2011 SC 554; Stroud's Judicial Dictionary (Fifth Edition - page 510; http://www.forensicmag.com/ articles/2015/01 / dna-forensic-testing-and-use-dna-rape-kits-cases-rape-and-sexual-assault; Parikhs Textbook Jurisprudence and Toxicology by C.K. Parikh; Modi in Medical Jurisprudence and Toxicology (23rd Edition - page 897); Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203; Muhammad Sajid v. The State 2000 PCr.LJ 1948; Jehangir v. The State 1987 PCr.LJ 964; Akbar Ali v. The State 2003 PCr.LJ 385 and Umar Din and another v. The State 2007 PCr.LJ 1627 rel.

(b) Words and phrases---

----'Consent'----Meaning and scope.

Stroud's Judicial Dictionary (Fifth Edition - page 510) rel.

(c) Medical jurisprudence---

----'Sexual intercourse'----Illustrated.

Parikhs Textbook Medical Jurisprudence and Toxicology by C.K. Parikh and Modi in Medical Jurisprudence and Toxicology (23rd Edition - page 897) rel.

Samsam Ali Khan for Applicant.

Akhtar Rehana, Additional P.G. for the State.

2016 P Cr. L J 1902

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

YAQOOB JOYO---Appellant

Versus

KIRAR and 5 others---Respondents

Criminal Acquittal Appeal No.S-113 of 2013, decided on 14th March, 2016.

Penal Code (XLV of 1860)---

----Ss. 382, 457, 147, 148, 149, 337(F(i) & 504---Criminal Procedure Code (V of 1898), S. 417(2-A)---Theft after preparation made for causing death, hurt, lurking house-trespass or house-breaking by night, rioting, common object, causing damiyah, intentional insult with intent to provoke breach of the peace---Appeal against acquittal---Limitation---Appeal against acquittal, which was to be filed within thirty days of impugned order of acquittal, was time barred by 12 days---Appellant, had not filed any application for condoning said delay and in appeal, appellant did not offer any explanation for such a delay in filing the appeal---Appeal against acquitted being time barred, was dismissed, in circumstances.

Abdul Ghaffar v. Muhammad Asif 2011 PCr.LJ 441 and Noor Hussain v. Muhammad Salim 1985 SCMR 893 ref.

Shaukat Ali Pathan for Appellant.

Shaikh Nabi Bux Azad for Respondents Nos.1, 4, 5 and 6.

Bhagwan Das Bheel for Respondents Nos.2 and 3.

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

2016 P Cr. L J 1911

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

DEEDAR AHMED---Appellant

Versus

The STATE---Respondent

Criminal. Appeal No.D-68 of 2004, decided on 2nd June, 2016.

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

----S. 13(d)---Criminal Procedure Code (V of 1898), S. 103---Keeping arms without licence---Appreciation of evidence---Public/independent witnesses not associated with arrest and recovery---Effect---Prosecution/police witnesses were contradictory regarding the place from where the accused was arrested and the arm recovered---No public/independent witnesses had been associated in the recovery proceedings---Evidence of the police official, needed independent corroboration---Requirement of S. 103, Cr.P.C. had not been complied with, which had made the recovery of articles doubtful---Impugned conviction and sentence, therefore, was not legal and proper---Joint memo of recovery and arrest of two separate cases had been prepared in the case against present accused and the other accused respectively, and the prosecution, on the basis of same memo, had failed to prove the case beyond reasonable doubt against the latter, who had been acquitted, and said order of acquittal had not been impugned---Benefit of the acquittal in the connected case on the same joint memo of recovery was extended to present accused, particularly, when the complainant/Investigation Officer had admitted that he had not produced the certificate of District Armour---Complainant had deposed that the case property had been sent to the Ballistic Expert in murder case for report, which was positive, but the prosecution had failed to produce said report, which also created doubt as to the alleged recovery---Case property and the live bullets had neither been produced in the court nor shown to the accused at the time of his statement under S. 342, Cr.P.C.---Appeal against conviction was allowed accordingly.

Khalid Mahmood v. The State 1994 PCr.LJ 552; Arif Khan v. the State 1998 PCr.LJ 1287; Rehmat Ali v. The State 1994 PCr.LJ 475; Mukhtar Ahmed v. The State 1999 PCr.LJ 222; Sajjan v. The State 1998 PCr.LJ 1399; Abdul Sattar v. The State 2002 PCr.LJ 51; Sobho v. The State 1994 PCr.LJ 158; Sarwar Khan v. The State 2000 PCr.LJ 779 and Abdul Sattar v. The State 2000 PCr.LJ 51 rel.

(b) Criminal Trial---

----Benefit of doubt----Scope---Benefit of doubt always goes to accused, and a single circumstance creating a reasonable doubt as to the guilt of the accused entitles him to such benefit, not as a matter of grace and concession but as of right.

Tariq Parvez v. The State 1995 SCMR 1435 rel.

Shahbaz Ali Brohi for Appellant.

Abrar Hussain Khichi, A.P.G for the State.

2016 P Cr. L J 1921

[Sindh]

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

ALI AHMED LUND---Petitioner

Versus

The STATE through Chairman NAB and 4 others---Respondents

Constitutional Petition No.D-1534 of 2015, decided on 13th May, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv) & (b)---Pre-arrest bail, refusal of---Assets beyond means---Voluntary return option---Petitioner was a holder of public office and allegation raised against him was acquiring of assets beyond known sources of his income---Petitioner claimed to have agricultural income who also opted for Voluntary Return option but the same was declined---Petitioner sought pre-arrest bail as NAB intended to arrest him---Validity---Petitioner changed his story and claimed that money in his accounts came from his agricultural income---Amount of agricultural income as assessed by NAB was based on a report of concerned revenue authorities and the same was prepared under the supervision of Assistant Commissioner---Agricultural income of petitioner was far less than he claimed and he could not have accounted for the transactions in his business accounts---Petitioner approached NAB for Voluntary Return option which was declined by NAB---Analysis of income and assets of petitioner by NAB were correctly investigated and tabulated as required by law and he was connected to the offence as charged---Pre-arrest bail was declined in circumstances.

Ali Nawaz Shah v. The State PLD 2003 SC 837; Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560; Ghulam Sarwar Zardari v. Piyar Ali @ Piyaro and another 2010 SCMR 624; Anwar Ahmed Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Ch. Shah Muhammad, Inspector v. Mst. Ramzan Bibi 1998 SCMR 2415; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668; Manzoor and 4 others v. State PLD 1972 SC 81; Haji Ghulam Ali v. The State 2003 SCMR 597; Ch. Shujjat Hussain v. The State 1995 SCMR 1249 and Saeed Ahmed v. The State 1996 SCMR 1132 distinguished.

Muhammad Hashim Babar v. State 2010 SCMR 1697 and Ghani Rehman v. NAB PLD 2011 SC 1144 rel.

Narain Das C. Motiani and Masroor Ahsan for Petitioner.

Muhammad Altaf, Special Prosecutor NAB along with Baqa Muhammad, I.O. NAB for Respondents.

2016 P Cr. L J 18

[Lahore]

Before Manzoor Ahmad Malik, CJ

MUHAMMAD JAVAID---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.274-J of 2011, heard on 25th May, 2015.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 510---Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt--- Delay in registration of FIR---Motive, absence of---Chemical Examiner and Serologist report---Scope---Matter was reported to police through statement made by complainant/brother of deceased on the same day 2-3/4 hours after the occurrence whereas distance between place of occurrence and police station was about seven kilometers---Case of prosecution in FIR and before the Trial Court was that three persons were present at the spot at the time of occurrence but they did not bother to report the matter to police soon after the incident---Such delay in reporting matter to police could not be explained at trial which cast doubt on veracity of prosecution case---Motive was not alleged against accused in FIR and before the Trial Court rather the same was attributed to a female co-accused who was tried separately and had been acquitted by Trial Court---Motive alleged by prosecution did not connect accused with commission of crime---Occurrence took place on 14-9-2006, accused was arrested on 24-9-2006, who got recovered hatchet on 24-9-2006, whereas the same was received in office of Chemical Examiner on 10-10-2006 i.e. about twenty six days after the occurrence---Blood on hatchet would disintegrate during such period---High Court declined to rely on recovery of hatchet and positive report of Chemical Examiner and Serologist---Prosecution failed to connect accused with commission of crime beyond any shadow of doubt---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Ashiq Hussain v. State PLD 1994 SC 879; Amin Ali v. The State 2011 SCMR 323 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 ref.

Ayub Masih v. The State PLD 2002 SC 1048 fol.

(b) Criminal trial---

----Evidence---Medical evidence---Scope---Medical evidence at the most is a supporting piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence.

Ms. Iffat Saif 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: 25th May, 2015.

2016 P Cr. L J 44

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

TAHIRA PARVEEN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MANSOOR ABAD, DISTRICT FAISALABAD and another---Respondents

Crl. Misc. No. 2207-H of 2015, decided on 22nd October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 491----Petition for direction in nature of habeas corpus---Custody of minor---Principles---Locus standi of adoptive parents---Mother claimed custody of minor alleging that father of minor had snatched minor from her lawful custody---Father took plea that petitioner had no locus standi to file present petition as she had adopted minor from her real sister---Validity---In the present case, it was only to be seen whether custody of minor with father was proper or illegal---Although, custody of minor with father could not be termed as illegal as father was also adoptive parent, but his custody was improper as mother enjoyed right of 'Hazanat' of minor and she was living apart from father of minor---As father was living with his first wife, thus it would not be appropriate to send minor in laps of step mother---Mother, on the other hand, had not remarried, thus she was able to look after minor properly---Real mother of minor stated before court, that minor, since her birth, had been happily living with her sister, petitioner---Statement of real mother was sufficient to brush aside contentions of father---Father was bound to provide all those facilities to child in the house of mother, which minor had enjoyed while living with him---High Court ordered custody of minor to be handed over to mother---Petition was allowed accordingly.

Naveed Munir v. Additional District and Sessions Judge, Lahore and another 2014 SCMR 1446 and Mst. Nadia Parveen v. Mst. Almas Noreen and others PLD 2012 SC 758 ref.

Naveed Munir v. Additional District and Sessions Judge, Lahore and another 2014 SCMR 1446 distinguished.

Muhammad Ajmal Adil for Petitioner.

Muhammad Ishaque, DPG with Saeed, SI.

Ghulam Fareed Sanotra for Respondent No.2.

2016 P Cr. L J 56

[Lahore]

Before Sardar Tariq Masood and Mirza Viqas Rauf, JJ

HAROON RASHEED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.34-J of 2008 and Criminal Appeal No.1848 of 2011, heard on 17th June, 2015.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Case property, charas and garda charas, was duly exhibited in the evidence of two prosecution witnesses, which was taken into possession vide recovery memo---Both said witnesses remained consistent and firm on all the material aspects of the recovery---Said witnesses, had given each and every detail with regard to the recovery proceedings---Both said witnesses, were cross-examined at considerable length, but nothing could be extracted, which could adversely affect the prosecution case---Tenor of cross-examination reflected that the defence had not seriously challenged the recovery of charas and garda charas from the vehicle---Mainstay of the defence was that accused, being the driver, had no conscious knowledge about the concealment of recovered substance in the vehicle and that he was made scapegoat in place of actual culprits---Said contention of accused, was negated by the statement of SHO, who during his cross-examination had stated that he recovered that material from the car on the pointation of accused---Absence of mens rea, also did not find support from the manner in which the recovery was effected---Case of the prosecution right from the day one was that when the vehicle in question was signaled to stop, the driver accelerated the same, and after a chase, vehicle was stopped by the Patrolling Police---Prosecution, while examining prosecution witnesses, had successfully discharged the burden of proof---Case property was produced before the Trial Court and there was no serious challenge to the same from the other side---Report of Chemical Examiner, tendered in evidence, affirmed the nature of recovered substance being a narcotic drug, attracting the penal provisions contained in S.9 of the Control of Narcotic Substances Act, 1997---Accused who had taken a specific plea in his defence, was found to lead cogent and convincing evidence to prove the same, but, defence plea was self-contradictory---Accused, could not prove that case against him was registered due to any enmity---Defence plea was as crafted one, which was self-destructive---No evidence, was led by accused to prove that he was falsely involved in the present case---Substitution in criminal case was always a rare phenomenon and foisting a huge quantity, weighing 35 Kg and 625 grams, was also improbable, where there was no animosity of the Police with accused---Prosecution had produced all the material witnesses in order to bring home the guilt of accused---Non-examination of Inspector, was not fatal to the prosecution case, as the prosecution was not bound to examine each and every witness cited in the calendar with the report under S.173, Cr.P.C.---Prosecution had the prerogative to examine the witnesses as per its own choice as the evidentiary value of the witnesses was to be determined on the basis of quality and not quantity---Facts and circumstances, always vary from case to case---Accused being the driver, was in control of the vehicle---Recovery of charas and garda charas was effected from different compartments of the car, including the driving seat---From the available evidence, it could easily be gathered that accused was fully aware of the presence of charas and garda charas in the car, especially when he failed to rebut the overwhelming evidence led by prosecution---No bar existed under the law for Police Officer to be complainant as well as Investigating Officer at the same time--- Where no prejudice was caused to accused, then functioning of complainant in his dual capacity was neither illegal nor unlawful--- Contention that when on the basis of same set of evidence, co-accused were acquitted, accused could not be convicted, was repelled, as the acquitted accused were neither arrested at the spot nor their identification was established on the record---Case of other accused persons was entirely on different footings, whereas accused being the driver was arrested at the spot and led to the recovery---Even otherwise principle of "falsus in uno falsus in omnibus", was not strictly applicable in criminal system of dispensation of justice as in the peculiar circumstances, the grain was to be sifted from the chaff---Prosecution had successfully proved its case against accused without any shadow of doubt by leading cogent and trustworthy evidence---Trial Court had duly appreciated the evidence available on record and rightly convicted accused by way of judgment under challenge---Trial Court had committed no illegality while convicting accused---Accused had failed to point out any illegality or material irregularity, requiring interference by High Court in exercise of appellate jurisdiction---While maintaining the conviction of accused recorded by the Trial Court, appeal was dismissed, in circumstances.

Gul Noor Ali v. The State 2015 SCMR 279; Akhtar Iqbal v. The State 2015 SCMR 291; Amjad Ali v. The State 2012 SCMR 577; Asghar Ali v. The State 1996 SCMR 1541; Allah Ditta v. The State 2010 SCMR 1181 and Muhammad Sarwar v. The State 2005 PCr.LJ 1005 ref.

Ismaeel v. The State 2010 SCMR 27; Kashif Amir v. The State PLD 2010 SC 1052; Ghulam Qadir v. The State PLD 2006 SC 61; State through Advocate-General, Sindh v. Basir and others PLD 1997 SC 408; Muhammad Zubair and another v. The State 2002 SCMR 1141; Criminal Appeal No.249 of 1996 Khawand Bakhsh and others v. The State and others Criminal Appeal No.250 of 1996 The State through Advocate-General, Balochistan, Quetta v. Bangul Khan; Criminal Appeal No.302 of 1997 and Mrs. Sallalakbar Bugti v. Bangul Khan and another PLD 2000 SC 1 rel.

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

----Ss. 32 & 33---Confiscation of articles connected with narcotics---Section 32 of the Control of Narcotic Substances Act, 1997, cast a duty upon the court that before passing an order for confiscation of a vehicle, to determine the fact that as to whether the owner of such vehicle was aware of the fact that offence was being, or was to be committed by way of such vehicle---Section 33 of Control of Narcotic Substances Act, 1997, made it obligatory for the court to provide an opportunity to the person, who claimed the right in the said vehicle---Impugned judgment of the Trial Court, was clearly evident of the fact that none of these mandatory provisions were adhered by the Trial Court, while passing the order of confiscation of the vehicle in question---Not a slightest piece of evidence, was found establishing the factum of knowledge of accused (owner of vehicle) with regard to commission of offence---Impugned judgment of the Trial Court to the extent of owner of vehicle could not sustain---Allowing appeal judgment was set aside to the extent of confiscation of vehicle in question.

Allah Ditta v. The State 2010 SCMR 1181; Bakhtiar v. The State and others 2009 MLD 131; Javed Hayat and another v. The State PLD 2006 Lah. 167 and Muhammad Sarwar v. The State 2005 PCr.LJ 1005 rel.

Shahid Azeem for Appellant (in Criminal Appeal No. 34-J of 2008).

Aziz Ahmad Malik for Appellant (in Criminal Appeal No. 1848 of 2011).

Rana Abdul Majeed, Additional Prosecutor-General for the State.

Date of hearing: 17th June, 2015.

2016 P Cr. L J 70

[Lahore]

Before Muhammad Tariq Abbasi and Sardar Ahmed Naeem, JJ

WARIS ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.116-J, 700 of 2011 and Murder Reference No.222 of 2011, heard on 1st October, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149--- Qatl-i-amd, rioting, common object---Appreciation of evidence---Sentence, reduction in---Motive as set up by the prosecution, was not proved---None of accused persons, caused any injury, either to the complainant or prosecution witness, despite the fact that they were at the mercy of accused---No pre-mediation and pre-consultation existed---Co-accused having been acquitted by the Trial Court on the same set of evidence, it was a fit case, which called for interference by High Court only to the extent of sentence---Mitigating circumstances existed in favour of accused---While maintaining conviction of accused under S. 302(b), P.P.C., his sentence of death was converted to imprisonment for life, with benefit of S. 382-B, Cr.P.C.---With said modification in the sentence, appeal filed by accused was dismissed, in circumstances.

Mst. Fazal Bibi v. Muhammad Rafiq and another 1984 SCMR 1373; Muhammad Iqbal v. The State 1990 ALD 693(1); Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Maqsood Khan v. The State and another 2003 PCr.LJ 1165; Saadullah Jan v. The State and another 2002 PCr.LJ 1463; Muhammad Ashraf v. Tahir alias Billoo and another 2005 SCMR 383 and Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

Malik Rabnawaz for Appellant (in Criminal Appeal No.116-J of 2011).

Malik Muhammad Jaffar, Deputy Prosecutor General Punjab for the State.

Azam Nazir Tarrar for the Complainant (in Criminal Appeal No.700 of 2011).

Date of hearing: 1st October, 2015.

2016 P Cr. L J 86

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

MUHAMMAD IMRAN QAMAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 2 others---Respondents

Writ Petition No. 18025 of 2015, decided on 23rd June, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), Ss. 302, 324, 353 & 186---Arms Ordinance (XX of 1965), Ss. 13 & 20---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant to discharge his public duty, obstructing public servant in discharge of public functions---Registration of FIR---Registration of second FIR during judicial inquiry or during existence of alternate remedy---Permissibility---Complainant filed application before Justice of Peace under Ss. 22-A & 22-B, Cr.P.C. for registration of second FIR against respondents (Police Officials), who were alleged to have murdered complainant's son in police encounter---Ex-Officio Justice of Peace had directed police to record statement of complainant under S. 154, Cr.P.C.---Contention raised by respondents was that they had already registered criminal case for murder of complainant's son---Complainant took plea that as respondents themselves had murdered his son in police encounter, so they had left actual facts out of first FIR, and that parties for second FIR were different---Validity---Police party, having killed complainant's son, to save their skins, had registered FIR against unknown assailants by leaving lacunae therein---Second FIR was permissible if truthfulness of first FIR had become highly doubtful---Existence of proceedings in judicial inquiry or existence of alternate remedy was no bar to registration of second FIR---Complainant had made out case for registration of second FIR---No illegality or infirmity could be pointed out in impugned order---Order of Ex-Officio Justice of Peace was maintained---Constitutional petition was dismissed in circumstances.

Mushtaq Hussain and others v. The State 2011 SCMR 45; Mst. Anwar Begum v. Station House Officer and others PLD 2005 SC 297; Muhammad Arif v. Umar Farooq, Inspector Police and 5 others 2010 MLD 128 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

Mst. Anwar Begum v. Station House Officer and others PLD 2005 SC 297 and Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 rel.

Ch. Abdur Rashid for Petitioner.

Wali Muhammad Khan, Assistant A.-G. for the State.

Pir Masood Ahmad Chishti, Ch. Latif Sara and M.R. Awan for Respondents.

2016 P Cr. L J 101

[Lahore]

Before Aslam Javed Minhas, J

ABDUL REHMAN---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No. 96 of 2008, heard on 6th July, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Crime report was registered with unexplained delay of three hours---Occurrence had taken place in the dark night in the month of March; and the prosecution witnesses, did not identify accused, which had shown that accused had been involved in the case after deliberation and consultation---Two empties taken into possession from the spot, had negated the version of the prosecution that one fire was made---Accused and acquitted co-accused were involved in the case in the supplementary statement---Accused admitted that enmity existed between father of co-accused and the complainant over a tube-well---Said plea of accused was never negated by the complainant---Contradiction was noticed between statement of complainant and in the FIR with regard to ocular account---Prosecution had failed to establish its case against accused beyond any shadow of doubt, when on the same evidence co-accused had already been acquitted of the charge---Even a single reasonable doubt, was sufficient to extend benefit of doubt to accused, whereas present case was replete with circumstances, which had created serious doubts about the prosecution story---Allowing appeal, conviction and sentence awarded to accused by the Trial Court vide impugned order, were set aside, and he was acquitted of the charge---Accused being on bail, his sureties were discharged.

Tariq Pervez v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Ch. Khalid Mehmood Arain for Appellant.

Ch. Saleem Akhtar Warraich for the Complainant.

Ch. Muhammad Akbar, DPG for the State.

Date of hearing: 6th July, 2015.

2016 P Cr. L J 121

[Lahore]

Before Sadaqat Ali Khan, J

Mst. MUSARAT BIBI and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 2267 of 2011, heard on 10th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not attributed to accused persons but to the acquitted accused---Complainant did not specifically assign any injury to any of the accused persons---Accused persons, could not be convicted against sole injury, which was assigned to all accused persons as well as acquitted accused---Complainant made dishonest improvements in his statement before the Trial Court---When a witness, would improve his version to strengthen the prosecution case, his improved statement, could not be relied upon---Improvements once found deliberate and dishonest, would cast serious doubt on the veracity of the witness---Complainant, who was maternal uncle of deceased, was not resident of the vicinity of the place of occurrence; but was resident of place which was 3/4 miles away from said place and could not establish his presence at the time and place of occurrence---FIR was lodged with noticeable delay; and post-mortem examination of the dead body, had also been conducted with significant delay---Said factors had pointed towards a real possibility that murder remained un-witnessed; and time had been consumed by the Local Police in procuring and planting eye-witnesses and cooking up a story for the prosecution---Eye-witnesses, being not believable, their evidence was disbelieved---Nothing was recovered from accused persons---Prosecution, having failed to bring home guilt of accused persons, Trial Court was not justified in convicting them while relying upon untrustworthy/uncorroborated evidence, deposed by interested witnesses---Benefit of doubt was extended in favour of the accused---Conviction and sentence awarded to accused persons by the Trial Court, were set aside, and accused persons were acquitted of the charge and were released extending them the benefit of doubt.

Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

Khawaja Naveed Ahmad for Appellant.

Iftikhar ul Haq Ch., A.P.G. for the State.

Aurangzeb Haral for the Complainant.

Date of hearing: 10th December, 2014.

2016 P Cr. L J 142

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 76-J of 2006 and Criminal Revision No. 1132 of 2006, heard on 4th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 304, 306, 307 & 308---Qatl-i-amd, not liable to qisas---Appreciation of evidence--- Accused was convicted under S.308, P.P.C.---Conviction under S.308, P.P.C., could only be passed in case in which proof of qatl-i-amd, liable to qisas as provided under S.304, P.P.C., was available, but the conviction, could not be passed as qisas, due to the reason given in Ss.306 & 307, P.P.C.---In the present case, sufficient proof of qatl-i-amd liable to qisas, was not available on record and the conviction was to be passed as Tazir---Where the conviction could only be passed as Tazir and not as qisas, the provisions of Ss.306 & 307, P.P.C., could not be applied---Judgment passed by the Trial Court convicting accused under S.308, P.P.C., was not sustainable in the eye of law---Impugned judgment passed by the Trial Court, was set aside and case was remanded to the Trial Court with direction to rewrite the judgment after hearing both the parties, within four weeks after receipt of judgment and till then accused would remain on bail.

Zahid Rehman v. The State PLD 2015 SC 77 rel.

Ch. Muhammad Ashraf Goraya for Appellant.

Humayun Aslam, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 4th June, 2015.

2016 P Cr. L J 153

[Lahore]

Before Erum Sajad Gull, J

USMAN FARID CHISHTI---Petitioner

Versus

INSPECTOR ANTI-CORRUPTION ESTABLISHMENT and others---Respondents

Writ Petition No. 20362 of 2015, decided on 13th August, 2015.

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

----S. 561-A--- Constitution of Pakistan, Art. 199--- Constitutional petition---Inherent jurisdiction of High Court---Petition for quashing of FIR---High Court refrained from quashing FIR at the first instance while exercising powers under Art. 199 of the Constitution or under S. 561-A, Cr.P.C.---Extraordinary jurisdictional powers could only be used by the High Court in very rare cases to quash FIR.

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

----S. 561-A---Quashing of FIR---Scope---High Court declined to quash FIR on ground that it was registered in violation of a provision of law, if actually an offence was committed and there was no finding that FIR was false or maliciously lodged.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 CLD 625 rel.

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

----Ss. 551, 561-A & 63---Police Rules, 1934, R. 24.7---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Alternate remedies---Cancellation of case---Scope---High Court could not directly quash FIR and person seeking to quash FIR must in first instance avail alternate remedies---Foremost remedy was to appear before Investigating Officer to plead and prove his innocence---Another remedy was to approach higher Police authorities vested with powers under S.551, Cr.P.C.---Under R. 24.7 of Police Rules, 1934, police had powers for cancellation of case, if during an investigation, it was made out that a false case had been registered and cancellation report so prepared by police was placed before Magistrate for procuring cancellation order of FIR---Once investigation was completed and Investigating Office submitted case before Magistrate then the former had power to discharge a person under S. 63 of Cr.P.C., if he was found innocent---If the Magistrate found that no case was made out, he would refuse to take cognizance of matter.

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

Abid Husain Khichi for Petitioner.

Shahbaz Tatla, AAG along with Shoaib ASI.

2016 P Cr. L J 159

[Lahore]

Before Mazhar Iqbal Sidhu, J

IMRAN ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1028 of 2007, decided on 14th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 364---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd and kidnapping for murder---Appreciation of evidence---Recovery on disclosure of accused---Accused was juvenile and alleged to have kidnapped deceased and murdered him by cutting throat of deceased with Churri (knife)---Accused was convicted by Trial Court and sentenced variously extending up to imprisonment for life---Abrasions all over the forehead including bridge of nose necessarily implicated that deceased was murdered in ruthless manner as incised wound found on right to left side of front of neck cutting upto thyroid and trachea measuring 8 cm x 6 cm, let death of deceased immediately caused by Chhuri---Medical evidence supported ocular account---Accused was arrested on 18-7-2006 and while in police custody, he on 24-7-2006, got recovered blood-stained Chhuri on his pointing out---Chhuri was made into sealed parcel and took into possession and its report was positive and also got recovered motorcycle on the same day---Such facts further beefed up prosecution version---Accused was tried as juvenile and remained escaped from capital punishment of death as case against accused had been noticed as fool proof---Explanation furnished by accused in his statement recorded under S. 342, Cr.P.C. had no support being alien to facts and circumstances of the case---Trial Court had given a well-reasoned judgment---High Court did not locate any perversity, illegality and impropriety in impugned judgment passed by Trial Court or any loophole in material available on file to extend any benefit to accused---Appeal was dismissed in circumstances.

Zafar Iqbal Sial for Appellant.

Iftikhar ul Haq, Additional P.G. for the State.

Rai Sajid Ali Kharl for the Complainant.

Date of hearing: 14th May, 2015.

2016 P Cr. L J 176

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD JAVED and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 171-J, 821, Criminal Revision No. 518 and Murder Reference No. 205 of 2010, heard on 25th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Incident was a broad daylight occurrence, and FIR was promptly lodged and entire version of the occurrence found mentioned therein---Ocular account stated by the eye-witnesses had given a vivid description of the occurrence---Witnesses were consistent in their versions, not only about the assailants, but also about the manner of the assault, as had been mentioned in the crime report---Despite lengthy cross-examination, nothing was brought out which could affect the veracity of the testimony of said witnesses---Motive part of the prosecution story, had also been proved by testimony of prosecution witnesses---Ocular version of said witnesses, was straight-forward and natural---Accused, had been attributed specific role of firing with firearm, with no chance of substitution---In ordinary course of things, it was not possible for the father of the deceased to screen the actual offender and implicate accused persons, falsely---Testimony of said witnesses had received ample corroboration from the medical evidence, and the recoveries of the weapons of offence---Complainant as well as eye-witnesses categorically attributed the firearms shots to accused persons and did not attribute anything to acquitted accused persons and it was not enough to discredit the reliable testimony of the prosecution witnesses---Two crime empties of .12-bore taken into possession, during spot inspection, which were sent to office of Forensic Science Laboratory---Report of laboratory revealed that said empties, were fired from the guns, which were recovered at the pointation of accused persons, and it led sufficient corroboration to the ocular account---Prosecution had succeeded to prove beyond any manner of doubt that accused was responsible for the murder of the deceased, and co-accused for causing gun shot injury on vital part of the body of the deceased---Guilt of accused persons, had been brought home, in circumstances---Sentence awarded to accused, was maintained, and same was not interfered with by the High Court---High Court observed that question of quantum of sentence, required utmost care and caution on the part of the courts, as such decisions would restrict the life and liberty of the people---Accused persons, also were entitled to extenuating benefit of doubt to the extent of question of sentence---Quantum of sentence to the extent of accused, who was awarded sentence of death, required reappraisal of evidence---Trial Court had acquitted two accused persons on the same set of evidence, and prosecution never assailed their acquittal before the High Court; meaning thereby that the complainant was satisfied with the conclusion arrived at by the Trial Court, which created doubt in the authenticity of the prosecution version to some extent, persuading to believe that the case of accused fell within the ambit of mitigation---To meet the ends of justice for the safe administration of criminal justice, it would be justified if the sentence of death awarded to accused was converted into imprisonment for life---Sentence of death awarded to accused under S.302(b), P.P.C., was altered to imprisonment for life with benefit of S.382-B, Cr.P.C.; his sentence of fine and the effect in the case of default in the same would remain as directed by the Trial Court.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Israr Ali v. The State 2007 SCMR 525 and Dilawar Hussain v. The State 2013 SCMR 1582 rel.

M. Inayat Ullah Cheema for Appellants.

Humayoun Aslam, Deputy Prosecutor General for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 25th May, 2015.

2016 P Cr. L J 193

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ

Dr. ASGHAR ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 1059 of 2006, decided on 6th May, 2015.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 75---Corruption and corrupt practice---Appreciation of evidence---Misuse of authority and gaining illegal pecuniary advantages---Photocopies of documents---Signatures, proof of---Benefit of doubt---Accused was convicted by Trial Court and sentenced to imprisonment for four years---Validity---Original copies of Special Modaraba Receipts (SMRs) were not produced as prosecution produced photocopies out of which 26 were in the name of accused---Such SMRs for the purposes of determination of guilt could not be relied upon for the reason that those were photocopies and acknowledgement on back through signatures of accused could not be proved by prosecution either by comparison of signatures or by recording statement of its custodian---Question whether accused himself was beneficiary of such transaction was shrouded in mystery---Prosecution failed to discharge its responsibility of proving case against accused beyond any shadow of doubt---High Court set aside conviction and sentence awarded by Trial Court to accused and he was acquitted of the charge---Appeal was allowed in circumstances.\

Ch. Shaukat Ali Saqib for Appellant.

Nadir Manzoor Duggal, ADPGA for NAB.

Date of hearing: 6th May, 2015.

2016 P Cr. L J 200

[Lahore]

Before Muhammad Tariq Abbasi and Sardar Ahmed Naeem, JJ

ZULFIQAR alias ZULLI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 44 of 2012 and Murder Reference No. 271 of 2011, heard on 17th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Statements of the complainant and injured prosecution witness regarding involvement of accused for commission of murder of the deceased and injury to the prosecution witness, were consistent and confidence inspiring---Defence, had failed to contradict the stance of said witnesses, or bring on the record any other material favourable to accused---Presence of said witnesses at the spot had not been denied---No material contradiction in the statements of said witnesses had been pointed out---Some minor discrepancies in the statements of said witnesses, being casual in nature, could not be taken into account---No previous enmity or grudge of the witnesses with accused, having been established on the record, their inter se relationship, would not discard their testimony, which otherwise was trustworthy and confidence inspiring---Motive alleged in the complaint, remained un-established and un-proved---Variation in ocular account with regard to injury sustained by the deceased and medical evidence would not adversely affect the prosecution case, because the witnesses, were not supposed to give photographic picture of the injuries---No empty having been collected from the spot, alleged recovery of pistol at the instance of accused had not given much benefit to the prosecution, due to lack of comparison---Findings of the Trial Court, in the impugned judgment, resulting in conviction of accused for commission of offence under S.302(b), P.P.C., were quite justified---Conviction and sentence awarded to accused in the charge under S.324, P.P.C., being call of the day were maintained---Deceased, sustained only one fire shot injury at the hands of accused and motive remained unestablished---Said facts, were sufficient to give premium to accused in quantum of sentence---Accused was entitled to benefit of doubt as an extenuating circumstance, while deciding question of quantum his sentence as well---Conviction of accused awarded by the Trial Court under S.302(b), P.P.C., was maintained, but his sentence, was altered from death to life imprisonment---Conviction and sentence of accused awarded under S.324, P.P.C., would remain intact---Accused would be entitled to the benefit of S.382-B, Cr.P.C.

Dilbar Masih v. The State 2006 SCMR 1801; Haji v. The State 2010 SCMR 650; Abdul Rauf v. The State and another 2003 SCMR 522; Ellahi Bukhsh v. Rab Nawaz and another 2002 SCMR 1842; Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Hasil Khan v. The State and others 2012 SCMR 1936 and Abid Ali and 2 others v. The State and others 2014 SCMR 1034 ref.

Malik Rab Nawaz for Appellant.

Gohar Nawaz Sindhu for the Complainant.

Tariq Javed, District Public Prosecutor for the State.

Date of hearing: 17th September, 2015.

2016 P Cr. L J 211

[Lahore]

Before Shahid Hameed Dar, J

Mst. MANZOOR ELAHI---Petitioner

Versus

SESSIONS JUDGE and 4 others---Respondents

Writ Petition No. 6603 of 2015, heard on 12th May, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 174 & 176(2)--- Constitution of Pakistan Art. 199---Constitutional petition--- Cause of death, determination of---Exhumation of dead body---Scope---Plea raised by petitioner was that exhumation of dead body of her daughter-in-law was required so as to ascertain cause of death of deceased---Validity---Mere fact that Investigating Officer mentioned two firearm injuries on the head of deceased lady in injury statement and Woman Medical Officer mentioned six other blunt weapon injuries on various parts of her body did not mean that postmortem examination report had unscrupulously been drawn by doctor---Blunt weapon injuries were merely some scratches on or around the neck with a couple of abrasions and contused swellings on such parts of her body which were covered under her dress, hence, could not have been examined by Investigating Officer, as morality did not permit it---Woman Medical Officer was in a far better position to examine dead body from all sides and whatever she noticed in such process, she mentioned it in the necropsy report and she did nothing wrong---High Court declined to allow exhumation of dead body on such discrepancy in injury statement prepared by Investigating Officer as she was buried on 7-1-2015 and her dead body might have been reduced to a skeleton by then and exhumation of dead body would be an exercise in futility---Power to exhume dead body as envisaged by Ss.174 & 176, Cr.P.C., could not be exercised merely on the whims of a person---Inquest held by police in the earlier instance and the postmortem examination report left nothing to speculate about cause of death, as it stood unequivocally established---Order passed by Magistrate prohibiting second postmortem examination was within his competence and order passed by Lower Appellate Court in revisional jurisdiction was equally unexceptionable---Petition was dismissed in circumstances.

Arshad Ali Chohan for Petitioner.

Raza-ul-Karim Butt, Assistant Advocate-General Punjab with Maqsood SI for Respondents.

Saif Ullah Khan for the Complainant.

Date of hearing: 12th May, 2015.

2016 P Cr. L J 220

[Lahore]

Before Shah Khawar and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD SAFDAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.497 and Criminal Revision No.297 of 2011, heard on 30th December, 2014.

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

----Ss. 302(b), 324 & 337-F(ii)---Criminal Procedure Code (V of 1898), Ss.161 & 162---Qatl-i-amd, attempt to commit qatl-i-amd, causing badi'ah---Appreciation of evidence---Supplementary statement---Scope---No explanation was offered by the prosecution to account for inordinate delay in filing FIR and conduct of autopsy---Said delay coupled with a supplementary statement which entirely changed the initial complexion of the prosecution case; heavily militated against the credibility of narration, rendered in FIR---Supplementary statement of prosecution witness was exhibited undated---Trial Court was not justified in exhibiting the statement, which was nothing more than a statement under S. 161, Cr.P.C.; and could neither be equated with FIR, nor construed as an extension thereof---Such statement could not be used for any purpose other than one provided in S.162, Cr.P.C.---Incorporation of the supplementary statement was not free from doubt, as complainant did not join Police Investigation after her initial statement in the hospital---Statement of other eye-witnesses recorded in consonance with the changed version in supplementary statement, could neither validate the case set up in the supplementary statement, nor assume any credibility in isolation thereof---Co-accused who was initially assigned fatal blow to the deceased had been acquitted---Case of accused was at par with the acquitted co-accused---Injury ascribed to other accused being 3 cm x 1 cm, was trivial in nature, which could possibly be sustained by the deceased while offering passive resistance being under assault---Trial Court was not justified to convict the accused on the charge of murderous assault after deceased's death---Motive was vague and non specific---Evidence which had been disbelieved qua 6 out of 8 accused, could not furnish basis for conviction of accused persons without independent corroboration which was lacking in the case---Recovery of churris at the instance of accused persons from open places, accessible to all the sundry, was not confidence inspiring; even otherwise inconsequential as those were not found stained with blood---Prosecution could not press those recoveries into service as independent corroboration---Impugned judgment, was set aside, and accused persons were acquitted from the charge---One of accused person who was in jail, was set at liberty, while other one who was on bail, his sureties stood discharged.

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

----S. 154---FIR---Scope---FIR, though had never been considered as the last word of the prosecution, nor encyclopedia to contain minute details of the occurrence, yet it was corner-stone of the prosecution case; any shift in position taken therein, was to be visited with extreme caution and care.

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

----S. 161---Examination of witness by Police---Examination of prosecution witnesses under S. 161, Cr.P.C., was a safeguard provided to an accused to ward off the possibilities of shifting positions by the prosecution witness---To avoid prejudice to accused, such time tested arrangements were to be jealously guarded.

Malik Waheed Anjum for Appellants.

Abdul Razzaq Shamim, DDPP with Muhammad Irfan, S.I. for the State.

Ch. Zulfiqar Anwar for the Complainant.

Date of hearing: 30th December, 2014.

2016 P Cr. L J 228

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

IFTIKHAR AHMAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 2191 and Murder Reference No. 576 of 2010, heard 28th November, 2014.

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

----Ss. 302(b), 148 & 149--- Qatl-i-amd, riot, common object---Appreciation of evidence--- Benefit of doubt---Only eye-witness produced by the prosecution, having inimical back-ground with accused person, was a chance witness---Conviction could be recorded on the basis of single witness, but when such witness was having inimical background with accused, same would require strong corroboration from any independent source, such was lacking in the case, and emanated doubt qua the presence of said witness at the scene of occurrence---Unexplained delay in conducting postmortem examination of the deceased, reflected that as per prevailing trend, possibility could not be ruled out that innocent persons had been implicated in the case along with the guilty ones---Plea of alibi taken by accused persons, was found correct by all the Investigating Officers as well as the Regional Investigation Branch---Even if, the defence had not led evidence to prove its plea of alibi, evidence, already available, had caused sufficient dent in the prosecution case to create reasonable doubt in its veracity to the extent of accused persons---Ocular account was not confidence inspiring and trustworthy qua the culpability of accused persons---Police Inspectors, who appeared as prosecution witnesses, could not collect any evidence against accused persons regarding the abetment in commission of murder of the deceased---Investigating Officers, had not efficiently and competently investigated the case, as they failed to collect the evidence qua the abetment---Nothing was recovered during the course of investigation at the instance of accused persons---Prosecution, in circumstances, had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Convictions and sentences recorded by the Trial Court against accused persons, were set aside; they were acquitted of the charge levelled against them, and were released, in circumstances.

Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence--- Scope--- Medial evidence, could confirm the ocular evidence with regard to the seat and nature of injury; the kind of weapon used in the occurrence, but it would not itself identify the accused---Medical evidence, in isolation, would not come forward to rescue the prosecution, which to the extent of accused persons, otherwise was standing on very weak footing.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

(c) Criminal trial---

----Motive---Scope---Motive was a double edged weapon; if it could be a reason to commit the offence as alleged by the prosecution, the same could also be a ground for false implication of accused persons.

(d) Criminal trial---

----Benefit of doubt---Duty of prosecution---Prosecution was supposed to prove its case beyond reasonable doubt---Prosecution could not take benefit of any weakness of defence---Existence of a single circumstance which would create reasonable doubt regarding the prosecution case was sufficient to give benefit of the same to accused.

Riaz Ahmad Khan along with Mst. Musarrat Bibi (on bail) for Appellants.

Tariq Javaid, District Public Prosecutor for the State.

Nemo for the Complainant.

Date of hearing: 28th November, 2014.

2016 P Cr. L J 257

[Lahore]

Before Sadaqat Ali Khan and Khalid Mahmood Malik, JJ

MUHAMMAD ABID and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.470, 471 of 2011 and Murder Reference No.60 of 2011, heard on 5th May, 2015.

(a) Criminal trial---

----Extra judicial confession--- Joint extra judicial confession---Reliance--- Until and unless extra judicial confession is not corroborated by any other independent piece of evidence, no reliance can be placed on it coupled with the fact that joint extra judicial confession is inadmissible in evidence.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Sarfraz Khan v. State and 2 others 1996 SCMR 188; Nizam-ud-Din v. The State 2010 PCr.LJ 1730 and Imran alias Dully and another v. The State and others 2015 SCMR 155 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery on disclosure---Proof---Recovery from public place---Failure to associate witnesses of locality---Two accused faced trial and both of them were convicted by Trial Court but one was sentenced to death while the other was sentenced to imprisonment for life---Validity---Blood-stained 'Kassi' was allegedly recovered from deserted room situated in a place accessible to everyone---Prosecution failed to establish that deserted room was exclusively in possession of accused and no independent witness was cited from locality---Single instance causing reasonable doubt in the mind of Court entitled accused to benefit of doubt not as a matter of grace but as a matter of right---Prosecution failed to prove its case against accused beyond any shadow of doubt---High Court extending benefit of doubt to both the accused persons set aside their conviction and sentences awarded by Trial Court and acquitted them of the charge---Appeal was allowed in circumstances.

Ghulam Mustafa and others v. State 2009 SCMR 816 and Azhar Iqbal v. The State 2013 SCMR 383 ref.

Muhammad Iqbal v. Abid Hussian alias Mithu and 6 others 1994 SCMR 1928; Muhammad Khan and another v. State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

(c) Criminal trial---

----Evidence--- Circumstantial evidence--- Scope--- Circumstantial evidence is weak type of evidence and conviction can be based on such evidence only if the same is duly corroborative by such evidence which maintain a complete chain of circumstances directly relatable to each other---When any link in the chain is missing in case of a circumstantial evidence, it is not safe to record conviction.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

Ch. Shafi Muhammad Tariq and Ch. Sohail Akhtar Alkara for Appellants.

Asghar Ali Gill, DPG for the State.

Syed Asim Ali Bukhari for the Complainant.

Date of hearing: 5th May, 2015.

2016 P Cr. L J 275

[Lahore]

Before Sardar Tariq Masood and Mirza Viqas Rauf, JJ

ABDUL HAFEEZ---Appellant

Versus

MAHMOOD AHMAD alias MOODA and another---Respondents

Criminal Appeal No.350 of 2004, heard on 1st June, 2015.

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

----Ss. 9(c) & 26---Possessing and trafficking narcotics---Acquittal of accused---Direction to register case against Police Official for vexatious entry, search, seizure or arrest of accused---Trial Court acquitted respondent/accused, but directed S.H.O. concerned to register a criminal case against Police Official concerned under S.26 of Control of Narcotic Substances Act, 1997, who was complainant in the case and allegedly recovered charas weighing 1250 grams from accused---Trial Court, while passing a direction for registration of case under S.26 of Control of Narcotic Substances Act, 1997, had failed to take into account the pre-requisite mentioned therein---In order to proceed against a person in terms of S.26 of the Control of Narcotic Substances Act, 1997 it had to be established on the record that accused was vexatiously and unnecessarily detained, searched or arrested in the offence---Impugned judgment of the Trial Court was completely silent on said aspect and did not term the search or arrest as vexatious and unnecessary---Court discussed the veracity of the other prosecution witnesses--- Penal clause provided under S.26 of the Control of Narcotic Substances Act, 1997 could only be invoked, where it appeared that the seizure and arrest was vexatious or unnecessary, otherwise in each and every case of acquittal, it would be pressed by accused to proceed in terms of S. 26 against the complainant, which would certainly damage the scheme of the law; and the Police Officials would become reluctant to be complainant in the case---Allowing appeal, set aside impugned order passed by the Trial Court to the extent of issuance of direction for registration of case against appellant/Police Official under S.26 of Control of Narcotic Substances Act, 1997.

Asadullah v. The State 2014 MLD 121 distinguished.

Saiful Hussain alias Faisal Hussain and 2 others v. The State 2013 MLD 1431 ref.

Saiful Hussain alias Faisal Hussain and 2 others v. The State 2013 MLD 1431 rel.

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

----Ss. 20, 21, 22, 26 & 72---Criminal Procedure Code (V of 1898), Ss.154, 190, 195 & 476, Sched.II---Search, seizure and arrest of accused---Initiation of proceedings under S.26 of Control of Narcotic Substances Act, 1997---In the case, recovery having been effected from the personal search of accused, subsection (c) of S.26 of Control of Narcotic Substances Act, 1997 would be relevant for said purpose---Contention that S. 26, was not attracted to search proceedings conducted under S.22 of the Control of Narcotic Substances Act, 1997, was misconceived---Section 26 of Control of Narcotic Substances Act, 1997 prescribed a punishment with imprisonment for a term, which could extent to three years, and fine as well which could extent to twenty five thousands rupees, thus by virtue of Schedule II, Cr.P.C., the same was cognizable; and in terms of S. 154, Cr.P.C., FIR could be registered directly under said section, without adopting any other mode---Control of Narcotic Substances Act, 1997, being special law, and having an overriding effect in terms of S.72 of Control of Narcotic Substances Act, 1997 upon the general law i.e. Code of Criminal Procedure, 1898, for initiating the proceedings under S.26 of the Control of Narcotic Substances Act, 1997, the court was not obliged to adopt the procedure provided under Ss. 190, 195 or 476, Cr.P.C.

Pervaiz Khan v. The State 2010 YLR 2005 ref.

(c) Words and phrases---

----"Vexatious"---Definition and explanation.

Black's Law Dictionary Seventh Edition by Bryan A. Garner ref.

(d) Words and phrases---

----"Unnecessary"---Definition and explanation.

Mian Abdul Qaddous for Appellant.

Rana Abdul Majeed, Additional Prosecutor-General for Respondents.

Date of hearing: 1st June, 2015.

2016 P Cr. L J 286

[Lahore]

Before Erum Sajad Gull, J

The STATE---Appellant

Versus

Syed AAMIR SHABBIR---Respondent

Criminal Appeal No. 817 of 2012, decided on 6th August, 2015.

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

----Ss. 161 & 193---Prevention of Corruption Act (II of 1947), S. 5(2)---Pakistan Criminal Law Amendment Act (XL of 1958), Ss. 6(1) & 6(3)---Criminal Procedure Code (V of 1898), Ss. 265-K & 249-A---Public servant taking gratification other than legal remuneration in respect of an official act, fabricating false evidence, criminal misconduct by public servant---Appeal against acquittal---Power of court to acquit accused at any stage---Procedure in trial of cases and powers of special judge---Complainant denied contents of FIR on oath---Effect---Accused was alleged to have taken bribe from complainant---Complainant got recorded his statement on oath before trial court exonerating accused from charge---Trial court, accepting application filed under S. 265-K, Cr.P.C., acquitted accused and dismissed application filed under S. 193, P.P.C. by State against complainant---Contention raised by State counsel was that as Special Judge was Magistrate, application under S. 249-A, Cr.P.C. was to be made and application under S. 265-K, Cr.P.C. was, therefore, not maintainable---Complainant, having recorded his statement on oath before trial court under which he stated that he had no complaint against accused, was declared hostile and cross-examined by State counsel---Complainant, during his cross-examination, had denied filing of any application against accused and stated his signatures and thumb impression on the same having been obtained on blank papers---Actual grievance of complainant was against senior officials of Customs department, against whom no action had been taken---Accused was too junior to have any powers---Accused had been made scape goat---Pakistan Criminal Law Amendment Act, 1958 had clearly laid down jurisdiction, powers, and procedure of trial conducted by Special Judges, under its S. 6(1), Special Judge would be deemed to be Court of Session---Under S. 6(3) of Pakistan Criminal Law Amendment Act, 1958 "provisions of Chapter XX of Cr.P.C. would apply to trial of cases under Prevention of Corruption Act, 1947 in so far as its provisions were not inconsistent with those of Cr.P.C."---Special Judge would have powers of Magistrate as defined in Chapter XX of Cr.P.C.---High Court observed that no objective would be served if case was remanded to trial court just to substitute S. 265-K, Cr.P.C. for S. 249-A, Cr.P.C.---Powers of court under Ss. 249-A & 265-K, Cr.P.C. were same---Complainant, being material witness, had stated that he had not witnessed any raid and his signatures had been taken on blank papers, continuation of trial, in circumstances, would be futile exercise---Special Judge, while accepting application under S. 265-K, Cr.P.C., had not committed any illegality---Appeal was dismissed in limine accordingly.

Tariq Mehmood v. The State 2002 SCMR 32; Khair Din v. State PLD 1982 SC 291; Sajjad Hussain Shah v. The State 1996 PCr.LJ 1223 and Muhammad Naeem Akhtar v. The State 1989 PCr.LJ 1438 distinguished.

(b) Criminal trial---

----Precedent---Applicability---Precedents in criminal case cannot be applied strictly, as each criminal case has its own peculiar facts and circumstances.

Syed Akmal Hussain Shah, Standing Counsel.

2016 P Cr. L J 300

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ

SARDAR MUHAMMAD NASEEM---Appellant

Versus

The STATE---Respondent

Criminal A. No. 370 of 2004, decided on 11th May, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(da) & 9(a)(v)---Assets beyond known sources of income---Appreciation of evidence---Benami properties---Sources of income---Proof---Accused was holder of public office and was convicted and sentenced by Trial Court for seven years imprisonment along with fine---Validity---No notice was issued to alleged Benamidar prior to confiscation of property, the same was fatal to prosecution case---In a case of assets beyond means, prior to discussing assets, the known source of income both legal and illegal had to be brought on record---Trial Court fixed value of properties but nowhere salary of accused for last 41 years, his savings and his other emoluments were even discussed---Court had no formula to apply in order to ascertain as to what were the assets beyond means---High Court disagreed with the findings of Trial Court and set aside conviction and sentence awarded to accused, resultantly he was acquitted of the charge---Appeal was allowed in circumstances.

Syed Zahir Shah and others v. National Accountability Bureau and others 2010 SCMR 713 rel.

Muhammad Saleem Shehnazi and Muhammad Aslam Khan Buttar for Appellant with Appellant as bail.

Arif Mehmood Rana, Additional Deputy Prosecutor General for NAB.

2016 P Cr. L J 313

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

PAIRA and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 696 of 2002, decided on 30th April, 2015.

(a) Criminal trial---

----Witness---Credibility---Principle---Witness cannot be believed merely on the basis of an articulate rendition unless his deposition is blended with probability with a ring of truth.

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

----Art. 46(1)---Dying declaration---Presumption---Dying declaration is presumably a declaration of truth; it is the only statement which is allowed to be admitted in evidence of its maker after his departure to the world hereinafter, under a belief that he while being face to face with God narrated truth, the whole truth and nothing but truth and it is such presumptive solemnity that rigors of administering oath and cross examination are dispensed with, leaving the person adversely affected in an awfully vulnerable position.

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

----S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 46(1)---Qatl-i-amd---Appreciation of evidence---Dying declaration, indivisibility of---Medical jurisprudence---Deceased died in hospital due to 90-98% burns on his body and four persons faced trial---Three accused were convicted by Trial Court on the basis of dying declaration of deceased and were sentenced to imprisonment for life whereas one was acquitted of the charge---Validity---Veracity of dying declaration was indivisible, as statement of maker of dying sans sanctity of oath as well as opportunity of cross-examination---It would be extremely unsafe to allow division of dying declaration so as to partially convict a person from the array of accused implicated therein---Such division would also be antithetical to the solemnity attached with a dying declaration---Not humanly possible for deceased to communicate after sustaining 90-98% burn injuries on his person that included almost each part of his body---Opinion given by doctor and his role in formulation of dying declaration was intriguing from many angles---On the one hand doctor mentioned in medico-legal certificate that deceased was oriented to time and space with presence of speaking power and on the other hand, he noted eyes as semi opened with mouth swollen and whole head and face black with all hair burnt plunging deceased into a dehydration shock---Even the strongest man on God's earth under such agonizing moments could not communicate---Dying declaration depicted two different formats and handwriting which could not possibly be result of one sitting exercise---Such dying declaration merited outright rejection---Broken latch of door with an iron nail coupled with injuries on the person of sister of one accused which were multiple and extensive in numbers and nature and reference to some love letters went a long way to spell out a scenario which was the nearest to the position taken by sister of one accused--- High Court set aside conviction and sentence awarded by Trial Court and acquitted all three accused of the charge---Appeal was allowed in circumstances.

Murad v. The State PLD 1957 (W.P.) Lahore 332; Rang Ali and others v. The State PLD 1958 (W.P.) Lahore 242; Muhammad Yasin v. The State 1978 SCMR 303; Godhu and another v. State of Rajasthan AIR 1974 SC 2188 and Laxmibai wife of Dhanraj Moon and another v. State of Maharashtra 2012 ALL MR (Cri) 3537 rel.

Malik Muhammad Saleem for Appellants.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General Punjab for the State.

Malik Amir Manzoor Awan for the Complainant.

Date of hearing: 30th April, 2015.

2016 P Cr. L J 323

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

USMAN ALI---Appellant

Versus

ADDITIONAL SESSION JUDGE/EX-OFFICIO, JUSTICE OF PEACE TOBA TEK SINGH and 4 others---Respondents

Intra Court Appeal No. 138 of 2015 in W. P. No. 10367 of 2014, decided on 19th October, 2015.

Penal Code (XLV of 1860)---

----S. 489-F--- Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Dishonouring of cheque---Contractual liability---Cheque in question was issued by appellant in the backdrop of settlement arrived at between parties in terms of agreement in a criminal case registered under S. 489-F, P.P.C.---Ex-officio Justice of Peace passed a direction for registration of FIR against appellant as cheque issued by him was dishonoured---Order passed by Ex-officio Justice of Peace was maintained by Single Judge of High Court---Validity---Cheque in question was given in terms of agreement and it was not issued to create any liability as alleged in application for registration of case---Dishonour of such cheque did not make out offence under S. 489-F, P.P.C.---Just to settle disputes with father of appellant, respondent moved frivolous application by way of concealing real facts and by doing so it was axiomatic that respondent did not approach court with clean hands---Respondent knocked the doors of Ex-officio Justice of Peace with mala fide intention and with ulterior motive in order to involve appellant in criminal proceedings to resolve some private vengeance--- Division Bench of High Court set aside the orders passed by Single Judge High Court and that of Ex-officio Justice of Peace---Intra court appeal was allowed in circumstances.

Ishrat Ali Javaid for Appellant.

Muhammad Nasir Chohan, Additional Advocate-General Punjab with Muhammad Faisal, ASI for Respondents.

Rana Rashid Akram Khan for Respondent No.4.

2016 P Cr. L J 330

[Lahore]

Before Muhammad Yawar Ali and Erum Sajad Gull, JJ

RANA ABBAS---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 11142-B of 2015, decided on 8th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Recovery of narcotics---Bail, refusal of---Heinous offence---Charas weighing 1650 grams was recovered from accused at the spot---Sufficient incriminating evidence/material existed on record to show presence and connectivity of accused with alleged crime---Accused was involved in yet another criminal case of similar nature---Offence with which accused was charged was heinous in its nature which squarely fell within the four corners of the prohibition as contemplated by S. 51 of Control of Narcotic Substances Act, 1997---High Court declined to exercise discretion in favour of accused---Bail was declined in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237; Fida Jan v. The State 2001 SCMR 36; Zafar v. The State 2008 SCMR 1254 and Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 rel.

Najeeb Faisal Chaudhry for Petitioner.

Dr. Muhammad Anwar Khan Gondal, Additional Prosecutor General and Muhammad Akram ASI with record for Respondents.

2016 P Cr. L J 352

[Lahore]

Before Mazhar Iqbal Sidhu and Erum Sajad Gull, JJ

MAQBOOL HUSSAIN alias JAMALA DOGAR---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

Writ Petition No. 19907 of 2015, heard on 12th August, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 149---Constitution of Pakistan, Arts. 10(1) & 199---Qatl-i-amd, unlawful assembly---Execution of sentence, suspension of---Right to consult a lawyer---Petitioner was convicted by Trial Court and sentenced to death which was maintained upto Supreme Court---Petitioner sought suspension of execution of his sentence on the plea that at the time of his arrest he was not provided opportunity to consult a lawyer---Validity---Petitioner started appearing before courts in 1996 and was represented by his counsel---Petitioner never raised plea that his fundamental right guaranteed by Art. 10(1) of the Constitution was infringed--- Petitioner was sufficiently, legally and constitutionally protected before execution---Petitioner was represented at all forums by legal experts, never agitated as to non-proper assistance/defense or denial of fundamental rights---Judicial system of the land for criminal administration of justice did not deny petitioner any legal, procedural or fundamental right---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

1993 PCr.LJ 1826; 2002 SCMR 1478; PLD 1957 Lah. 496; PLD 1957 Lah. 813 & 388; PLD 1993 SC 473; PLD 1995 SC 66; 2012 SCMR 1610 (Indian); PLD 1965 SC 690; PLD 1976 SC 315; PLD 2005 SC 819 and 2007 SCMR 1 distinguished.

Ram Sarup v. Union of India and another AIR 1965 SC 247 (V 52 C 44) rel.

A. K. Dogar for Petitioner.

Mian Tariq Ahmad, Deputy Attorney General and Tahir Mehmood Ahmad, Standing Counsel for Federation.

Date of hearing: 12th August, 2015.

2016 P Cr. L J 380

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

NAJAF KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 175, Criminal Revision No. 95 and Murder Reference No. 34/RWP of 2009, heard on 9th September, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Un-witnessed occurrence---Post-mortem examination of dead bodies was conducted with the delay of about twelve hours after the occurrence and such a delay had not been explained by the prosecution---Such unexplained delay was normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of the deceased which happened only when complainant and police were busy in consultation and preliminary inquiry regarding culprits in such cases of un-witnessed occurrence.

Muhammad Riaz v. The State 2009 PCr.LJ 1022 and Irshad Ahmed v. The State 2011 SCMR 1190 ref.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Solitary witness---Scope---conviction could be recorded on the basis of testimony of a solitary witness but it was equally relevant that same should be of an unimpeachable character and confidence inspiring---In the present case, the solitary witness during his cross-examination had candidly admitted that he was also complainant and eye-witness of another incident of murder of his brother and complainant of the present case, and out of three nominated accused persons, two were acquitted of the charge after the trial in the said other case---Effect---Held it was surprising that in both the occurrence, solitary witness was the eye-witness as alleged by him and he was disbelieved by the Trial Court to the extent of two of the accused persons in the other case---In the present case, co-accused who was, per prosecution case, present at the time of occurrence was armed with a hatchet and he also raised commanding lalkara to his sons, also stood acquitted by Trial Court while disbelieving the testimony of solitary witness---Creditability of deposition of solitary witness qua the present accused was to be looked in with utmost care and caution.

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

----Art. 129(g)---Criminal Procedure Code (V of 1898), S. 161---Examination of witness by police---Presumptions as to statements---Scope---Neither the statements of son of deceased who was residing in the house besides the widow and daughter of the deceased, the natural witnesses, were got recorded under S. 161, Cr.P.C. nor they were produced by prosecution before Trial Court which made it clear that prosecution intentionally and dishonestly withheld the evidence of natural witnesses---Withholding the natural witnesses who were not unnecessary at all, being inmates of the house, required that an adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 be drawn against the prosecution that had the said witnesses been produced in the witness box, they would have deposed against the prosecution.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---According to prosecution, the occurrence took place in winter night but the source of light i.e. gas cylinder allegedly available in the room where occurrence took place was never produced by complainant during investigation and admittedly, the same was not secured by the Investigation Officer to prove the source of light necessary for identification of the assailant at the crime scene---Investigation Officer also admitted during his cross-examination that place where gas cylinder was lying was not shown by him in rough site plan of the place of occurrence and similar was the position of scaled site plan which created serious doubts about the identification of the assailants by the eye-witness as the prosecution witness had candidly admitted that place of occurrence was not electrified, thus, prosecution could not prove its case through ocular account that was replete with tangible doubts.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308 and Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 rel.

(e) Criminal trial---

----Abscondance could not be taken as a proof of guilty mind, if otherwise sufficient connecting evidence against the accused was not available---Abscondance created merely a suspicion in mind but the same was not a conclusive proof of guilt.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

(f) Criminal trial---

----When direct evidence had been disbelieved, the evidence of motive which was merely corroboratory in nature could not provide basis for conviction of accused.

(g) Criminal trial---

----Benefit of doubt---Scope---Prosecution had to prove its case against the accused by standing on its own legs and it could not take any benefit from the weaknesses of the case of defence---In the present case, the prosecution failed to discharge its responsibility of proving the case against accused---If there was a single circumstance which created reasonable doubt regarding prosecution case, the same was sufficient to give benefit of the same to the accused.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Ghulam Asghar Khokhar for Appellants.

Muhammad Usman, Deputy Prosecutor General for the State.

Muhammad Bashir Paracha for the Complainant.

Date of hearing: 9th September, 2015.

2016 P Cr. L J 407

[Lahore]

Before Sardar Tariq Masood and Mirza Viqas Rauf, JJ

Mst. IRSHAD BEGUM alias SHADAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 62 and 167 of 1999, decided on 31st August, 2015.

(a) Control of Narcotic Substances Ordinance (XLIII of 1997)---

----Ss. 6, 7, 8, 9 & 29---Criminal Procedure Code (V of 1898), Ss. 164 & 342---Recovery of narcotics---Appreciation of evidence---Onus of proof---Quantity of narcotic substance---Confessional statement---Accused persons were convicted by Trial Court and were differently sentenced extending upto 25 years imprisonment---Accused persons could only be punished for contravention of Ss. 6, 7 & 8 under S. 9 of Control of Narcotic Substances Ordinance, 1997, on the basis of quantity of narcotic drug, psychotropic substance or controlled substance---Neither prosecution nor Trial Court was sure about actual quantity of alleged recovered substance on the basis of which culpability of accused persons was determined---None of the documents or reports tendered in evidence were even put to accused persons in their statements under S. 342, Cr.P.C.---Alleged statements of witnesses and accused recorded under S. 164, Cr.P.C., were also not placed before accused persons when they were examined under S. 342, Cr.P.C.---Though in terms of S. 29 of Control of Narcotic Substances Act, 1997, some departure to general principle was introduced but even in presence of such provision of law, the prosecution could not be absolved from its initial liability to discharge onus of proof---Initial onus of proof was always upon prosecution and once it was discharged, then the accused would be burdened to prove contrary in terms of principles laid down in S. 29 of Control of Narcotic Substances Act, 1997---Prosecution had failed to bring home guilt of accused and its case suffered coherent defects and the evidence was full of doubts---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

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

----S. 342---Statement of accused under S. 342, Cr.P.C.---Purpose and use of against accused---No incriminating material could be used against accused unless that was specifically put to him during his statement under S. 342, Cr.P.C.---Purpose behind the principle was that the accused must be aware of all the material evidence which was to be used against him---Lapse on the part of prosecution was fatal going to the root of the prosecution case.

Muhammad Yousaf v. Muhammad Yousaf and another 2014 PCr.LJ 1517; Muhammad Afzal, Ex-Assistant Sub-Inspector v. Senior Superintendent of Police, Operation, Lahore and 4 others PLD 2005 Lah. 377 and Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292 ref.

Munir Ahmed alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Ashraf and 4 others v. The State 2004 PCr.LJ 42; Muhammad Zaman v. The State and others 2014 SCMR 749 and Muhammad Ashraf and others v. The State and others PLD 2015 Lah. 1 rel.

Abdul Latif Chaudhary, Aftab Ahmad Bajwa and Shahbaz Hussain Hashmi for Appellants.

Sahibzada Anwar Hameed, Special Prosecutor for Anti-Narcotics Force.

Date of hearing: 18th June, 2015.

2016 P Cr. L J 424

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

Mst. SANA JAMIL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary and 5 others---Respondents

W. P. No. 22474 of 2015, decided on 11th August, 2015.

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

----Ss. 3 & 6---Alternate remedy, non-availing of---Detention---Pendency of criminal cases--- Grievance of petitioner was that her husband was detained for thirty days by an administrative order on the ground that many criminal cases were pending against the petitioner regarding illegal constructions--- Plea raised by authorities was that right of appeal before government was available to petitioner--- Validity---No evidence was collected by concerned Authority due to which detention of detenu/husband of petitioner under S. 3(6) of West Pakistan Maintenance of Public Order Ordinance, 1960, could be justified---High Court declared the detention orders as illegal, without any lawful justification and ineffective upon the rights of detenu and order of detention was set aside as there was no justifiable reasons available for detention---High Court directed the authorities to release the detenu forthwith if not required in any other case---Petition was allowed in circumstances.

Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur 1999 PCr.LJ 2014 and Abdul Rasheed Bhatti v. Government of Lahore, Punjab PLD 2010 Lah. 484 ref.

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

----Ss. 3 & 6---Constitution of Pakistan, Art. 199---Detention order---Constitutional petition, filing of---Prior to filing constitutional petition against order of detention, it was not necessary to assail the same before provincial government.

Peer Masood Ahmad Chisti and Aamir Sadiq Butt for Petitioner.

Malik Abdul Aziz Awan, Additional Advocate-General for Respondents.

2016 P Cr. L J 449

[Lahore]

Before Shahid Hameed Dar, J

GHULAM ISHAQ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE GUJRANWALA and 3 others---Respondents

Writ Petition No. 19786 of 2014, decided on 19th December, 2014.

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

----Art. 133---Constitution of Pakistan, Art. 199---Constitutional petition---Cross-examination, right of---Petitioner was facing trial before criminal court and avoided to cross-examine the prosecution witnesses---Trial Court closed the right to cross-examine and said order was maintained by Lower Appellate Court---Validity---Interest of justice would be best served if, notwithstanding evasive conduct of petitioner, only one opportunity would be afforded to him to cross examine prosecution witnesses within the spirit of Qanun-e-Shahadat, 1984---High Court directed Trial Court to complete testimonies of prosecution witnesses after having them cross-examined by petitioner and conclude trial of petitioner as expeditiously and conveniently as possible---Petition was allowed in circumstances.

Muhammad Awais Kamboh for Petitioner.

Ch. Muhammad Shabbir Gujjar, Assistant Advocate-General Punjab with Javed Akhtar, ASI for Respondents.

2016 P Cr. L J 464

[Lahore]

Before Shujaat Ali Khan, J

Mst. RIFFAT MUNIR---Petitioner

Versus

NAVEED ZAFAR and another---Respondents

Criminal Miscellaneous No.7690-BC of 2013, decided on 25th June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 379 & 406---Theft and criminal breach of trust---Bail, cancellation of---Principle---Complainant was aggrieved of pre-arrest bail granted to accused persons and sought its cancellation on the ground that sufficient material was available on record to connect them with commission of offence--- Validity--- When bail was granted via court of competent jurisdiction on the basis of valid reasons the same could not be recalled/cancelled until and unless exceptional grounds were established by prosecution--- Considerations for grant of bail and for cancellation thereof were entirely different---High Court declined to interfere in the bail granted to the accused persons by the court below--- Application was dismissed in circumstances.

Shameel Ahmed v. The State 2009 SCMR 174; Shah Nawaz v. The State 2005 SCMR 1899; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Muhammad Hussain v. Zaheer Ahmed and others 2001 SCMR 1412; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Muhammad Hussain v. The State 1982 SCMR 227 distinguished.

Muhammad Nazir v. Fazal Karim PLD 2012 SC 892 and Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 rel.

Nemo for Petitioner.

Ch. Muhammad Ishaque, Deputy Prosecutor General along with Muhammad Mansha ASI with record.

Tayyab Shakoor for Respondent No.1.

2016 P Cr. L J 477

[Lahore]

Before Ali Baqar Najafi and Erum Sajad Gull, JJ

ASGHAR ALI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 18098 of 2014, decided on 1st July, 2015.

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

----S. 34---"Rules" and "Standard Operating Procedures" issued by Chairman NAB---Distinction---Standard Operating Procedures issued by Chairman National Accountability Bureau do not have force of rules as envisaged by S. 34 of National Accountability Ordinance, 1999.

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

----S. 25(b)---Constitution of Pakistan, Art. 199---Constitutional petition--- Plea bargaining--- Incidental charges, imposing of---Grievance of the petitioner was that while determining liability against him, the authorities included 15% incidental charges in the same--- Validity--- 15% incidental charges was not the condition as mentioned in S. 25(b) of National Accountability Ordinance, 1999, because the law was clear and precise---Imposing of 15% incidental charges was illegal having no force of law and the same was imposed in violation of S. 25 of National Accountability Ordinance, 1999---High Court declared claim of 15% incidental charges by authorities as illegal having no force of law and in violation to S. 25 of National Accountability Ordinance, 1999---High Court restrained the authorities from claiming excess amount as 15% incidental charges from petitioner---Petition was allowed in circumstances.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Syed Ali Nawaz Shah and 2 others v. The State and others PLD 2003 SC 837; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 and Haji Khan Muhammad v. Government of Pakistan National Accountability Bureau through Chairman and 2 others 2013 PCr.LJ 1571 rel.

Muhammad Amjad Pervaiz for Petitioner.

Syed Faisal Raza Bukhari, Additional Deputy Prosecutor-General for NAB.

2016 P Cr. L J 491

[Lahore]

Before Abdul Sami Khan, J

MAQBOOL ARSHAD alias SAJJAD HUSSAIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.692, 743 of 2006, P.S.L.A. No.67 of 2006 and Criminal Revision No. 470 of 2006, heard on 17th April, 2015.

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

----Ss. 302(b) & 324---Qatl-i-amd and attempt to commit Qatl-i-amd---Appreciation of evidence---Evidence, improvements in---Benefit of doubt---Recovered weapon not used in occurrence---Seven accused persons were tried in private complaint out of them five were acquitted and two were convicted and sentenced to imprisonment for life by Trial Court---Validity---Improvements were made by complainant and eye witness dishonestly and deliberately, who were duly confronted by defense during cross-examination---Such improvements created serious doubt about veracity and credibility of witnesses and it was not safe to rely upon evidence of such witnesses---No injury to the deceased as well as injured was caused with weapon of offence recovered during investigation---Investigating Officer failed to collect any crime empty from scene of occurrence and in absence of any positive report of Forensic Science Laboratory, recovery of weapons of offence was inconsequential and the same could not be used in support of prosecution evidence---Prosecution failed to prove its case against both the accused persons beyond reasonable doubt---Not many circumstances in prosecution story creating doubt against accused were required rather a single circumstance creating a doubt was enough for acquittal of accused---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted them of the charge by extending benefit of doubt to them---Appeal was allowed, in circumstances.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 ref.

Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Medical evidence---Scope---Such evidence can only confirm seat and time of injuries and kind of weapons used during occurrence but does not point out as to which accused has caused injuries.

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

----S. 417---Appeal against acquittal---Scope---Appeal against acquittal has distinctive features and approach---To deal with such appeal is distinguishable from appeal against conviction because presumption of double innocence is attached in former case---Order of acquittal can only be interfered with, when it is found on the face of it as capricious, perverse or arbitrary in nature.

Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 562 rel.

Arshad Nazir Mirza for Appellants (in Cr. A. No. 692 of 2006).

Rana Muhammad Zahid for Appellants (in Cr. A. No.743 of 2006).

Irfan Zia, Deputy Prosecutor-General for the State.

Muhammad Inayat Ullah Cheema for the Complainant.

Date of hearing: 17th April, 2015.

2016 P Cr. L J 535

[Lahore]

Before Muhammad Anwaarul Haq and James Joseph, JJ

UMAR KHUBAIB---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 33509 of 2014, decided on 28th January, 2015.

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

----S. 498---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.5(6) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail---Scope---Contention was that S. 498, Cr.P.C., was not applicable in the case falling under the Offences in Respect of Banks (Special Courts) Ordinance, 1984; and that when there was bar for a specific relief, that could not be granted by invoking Art.199 of the Constitution---Question of bail was always a question of analyzing the facts of a specific case and said exercise was not permissible under constitutional jurisdiction---Validity---In view of provisions of Ss.5(6) & 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, there was no bar to file a petition for pre-arrest bail under S.498, Cr.P.C., prior to conviction of accused under said special law.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Chairman, National Accountability Bureau, Islamabad and another v. Asif Baig Muhammad and others 2004 SCMR 91; Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another 1985 PCr.LJ 890; Muhammad Moosa v. The State 1986 PCr.LJ 578 and Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.409, 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by Banker, forgery for purpose of cheating, using as genuine a forged document, falsification of account---Pre-arrest bail, grant of---Further inquiry---Allegation against accused was that he along with his co-accused had committed forgery and fraud by dishonestly and deceitfully withdrawing amount from the bank---Direct allegation was against co-accused---Accused was not nominated in the FIR; and he had been nominated in the case on the statement of co-accused; wherein no allegation was levelled against the accused that he opened the alleged fake account and withdrew any amount from the same---Only role assigned to accused was of an abettor---Statement of co-accused, was an exculpatory statement, as he had confessed his participation in the offence under the threat of a co-accused and not of his own---Except said exculpatory statement of co-accused, no other evidence was on the record against the accused---Question of guilt of accused was a matter of further inquiry, and his role of abettor; could only be determined by the Trial Court after recording of some legal evidence, if any---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

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

----S. 498---Pre-arrest bail---Scope and grant of---Grant of pre-arrest bail no doubt, was an extraordinary relief, and in ordinary circumstances could not be granted in routine, but for sending a person behind the bars, there must be some legal/tangible evidence with the prosecution to establish at least a prima facie case against him---In the absence of any such evidence, sending accused behind the bars was altogether unjustified, especially when no question of any recovery was involved against accused.

Nasir-ud-Din Khan Nayyer for Petitioner.

Mirza Abdullah Baig, Standing Counsel for Federation of Pakistan along with Muhammad Aftab Butt, Assistant Director, FIA/CBC, Lahore with record.

Adnan Shuja Butt for the Complainant-Bank.

2016 P Cr. L J 558

[Lahore]

Before Manzoor Ahmad Malik, C.J.

NADEEM BHATTI alias SANNI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 113-J of 2013, heard on 30th June, 2015.

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

----Ss. 365-B, 376 & 380--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping, abducting and inducing woman to compel for marriage, etc., rape and theft in dwelling house---Appreciation of evidence---Court to presume existence of certain facts---Failure to produce eye-witnesses---Presumption---Absence of recovery---Effect---Delay in lodging FIR---Medical evidence---Evidentiary value---Contradictions in statements of prosecution witnesses---Benefit of doubt---Principles---Accused was alleged to have committed rape with daughter of complainant after abducting her along with committing theft of cash and gold ornaments---Trial Court convicted accused of said charges and sentenced him to undergo different periods of imprisonment, including life imprisonment, along with fine and compensation to victim under section 544-A, Cr.P.C.---Held, FIR had been registered with delay of three days, which remained unexplained---Complainant alleged to have moved application for registration of case on the day of occurrence, whereas police official, as prosecution witness, stated that said application had been submitted after three days of occurrence, but said witness was not declared hostile by prosecution---FIR had not been lodged with due promptitude---Complainant, as per his own statement, was not eye-witness of alleged occurrence and had been informed about the same by others---Complainant's statement was, therefore, not very much relevant---Eye-witnesses, who had seen the alleged occurrence, having been given up as being unnecessary by prosecution, were not produced during trial---Adverse presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could safely be drawn that had said eye-witnesses been produced before Trial Court, they would not have supported prosecution case---Victim was the only relevant witness of alleged occurrence, but her statement was not safe to be relied upon---Vehicle and weapon allegedly used in occurrence had not been recovered---Story regarding recovery of victim at instance of accused was fabricated, as the victim was with complainant before lodging of FIR as per his own declaration during evidence---Police officials, as prosecution witnesses, had conceded that victim had been recovered prior to registration of case, and they also admitted to have fabricated evidence in that regard---Prosecution had failed to prove charge against accused under S.380, P.P.C. as recovery of stolen cash and gold ornaments had not been effected during investigation--- Medical evidence had not advanced case of prosecution---Woman Medical Officer deposed that she had noted hymen was raptured with old healed margin, and there were no tear laceration bruises swelling---Medico-legal examination certificate showed that although victim had experienced sexual intercourse, but no signs of resistance were present---Medical evidence was supportive piece of evidence and relevant only if primary evidence inspired confidence, which was not the situation in the present case---Clothes of victim, which she was wearing at time of alleged occurrence, were not taken into possession by Investigating Officer, nor were same produced at time of medical examination---Accused, in circumstances, was entitled to benefit of doubt not as matter of grace but as of right, as case of prosecution was doubtful in nature---High Court, setting aside convictions and sentences, acquitted accused of all charges---Appeal was allowed in circumstance.

(b) Criminal trial---

----Medical evidence--- Scope--- Medical evidence is supportive piece of evidence and relevant only if primary evidence inspires confidence.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Sheharyar Khan Sidhu, Advocate/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: 30th June, 2015.

2016 P Cr. L J 578

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

NASREEN AKHTAR---Appellant

Versus

Mian ABBAS, SHO and 7 others---Respondents

Criminal Appeal No. 840 of 2004, heard on 30th June, 2015.

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

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), Chapt. XXII-A [Ss. 265-A to 265N], Ss. 200, 202, 247 & 417(2)---Qatl-i-amd and rioting armed with deadly weapons---Private complaint---Dismissal for absence of complainant---Grievance of complainant was that Trial Court in exercise of powers under S. 247, Cr.P.C., dismissed the complaint for her non-appearance---Validity---Discretion provided under S. 247, Cr.P.C., was to be exercised (i) by Magistrate; (ii) only in cases of non-cognizable or compoundable offence; as such it reflected intention of the legislature behind non-availability of similar provision of law in Chapt. XXII-A, Cr.P.C., which had provided procedure for trials to be conducted by sessions courts---If any private complaint case was pending before that was to be dealt in accordance with the procedure laid down in Chapt. XXII-A of Criminal Procedure Code, 1898 and not in the manner as was erroneously adopted by Trial Court---High Court set aside the order passed by Trial Court as the same was illegal and provisions contained in S. 247, Cr.P.C., could not be exercised in session trials---High Court remanded the case to Trial Court for further proceedings in accordance with law---Appeal was allowed in circumstances.

(b) Administration of justice---

----When a thing is provided to be done in a particular manner it is to be done in that manner and if it is not so done, it is illegal.

Salman Sadiq for Appellant.

Humayoun Aslam, Deputy Prosecutor General for the State.

Sana Ullah Khan for Respondents.

Date of hearing: 30th June, 2015.

2016 P Cr. L J 590

[Lahore]

Before Farrukh Gulzar Awan, J

NADEEM ABBAS---Petitioner

Versus

DISTRICT COORDINATION OFFICER and 3 others---Respondents

W. P. No. 19298 of 2015, decided on 25th June, 2015.

Police Order (22 of 2002)---

----Art. 16--- Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy---Petitioner who was neither complainant of the FIR nor he was prosecution witness in the case and was alien to the proceedings before Police or the Magistrate was aggrieved of the order passed by Trial Court whereby cancellation report prepared by police was approved---Validity---In order to invoke constitutional jurisdiction of High Court, petitioner was to be an "aggrieved person" having a locus standi to avail such remedy---Petitioner was neither complainant nor witness in the case---Nothing was available on record to the effect that Trial Court committed any illegality or material irregularity while passing the order in question---Order was in accordance with law---Petitioner had an alternate remedy of filing an application under Police Order, 2002, before concerned quarters, if he was not satisfied with investigation conducted by police or he could approach Civil Court for cancellation of documents of respondent---High Court, under Art. 199 of the Constitution was not obliged to issue writ in each case especially when adequate remedy in the form of private complaint as well as filing of civil suit was available to petitioner---Petition was dismissed in circumstances.

Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others 2014 CLC 600; Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951; Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Mian Muhammad Nawaz for Petitioner.

Malik Waseem Mumtaz, Additional A.-G. on Court's Call.

2016 P Cr. L J 599

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD ANWAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE MIAN CHANNU and 7 others---Respondents

W. P. No. 14300 of 2011, decided on 2nd September, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 244(2), 265-F, 161 & 200---Penal Code (XLV of 1860), Ss. 452, 148 & 149---Rioting armed with deadly weapon, common object, house trespass for preparation of hurt, assault and wrongful restraint---Private complaint--- Application for summoning of witnesses, acceptance of---Principles---Evidence for prosecution---Examination of witnesses by police---Cursory or supplementary statements, recording of---Principles as to requirement---Complainant, during trial on private complaint, filed application for summoning of witnesses, which was allowed by Trial Court---Revisional court, however, set aside order of Trial Court for absence of cursory statements of proposed witnesses---Under Ss. 244(2) & 265-F of Cr.P.C., court, having ascertained, either from Public Prosecutor or from complainant, names of any person who was likely to be acquainted with facts of case and was able to give evidence for prosecution, would summon such person to give evidence before it---Vast powers had been given to trial court with regard to summoning of any person as witness---Recording of cursory statement or statement under S. 161, Cr.P.C. was not requirement of law---Names of witnesses, which were sought to be summoned, had been duly incorporated in calendar of witnesses, which was attached with private complaint---Ground that accused would not have opportunity to confront the witnesses with their earlier statements under S. 161, Cr.P.C. or their cursory statements, had not backing of law---When witnesses would appear in witness box, rival party would have ample opportunity to cross-examine them to shatter their testimony---High Court, setting aside order of revisional court, restored that of Trial Court---Constitutional petition was allowed accordingly.

Syed Jaffar Tayyar Bokhari for Petitioner.

Mubashir Latif Gill, Assistant Advocate-General for the State.

Ch. Muhammad Akbar Kamboh for Respondents.

2016 P Cr. L J 618

[Lahore]

Before Erum Sajad Gull, J

ABDUL QAYYUM---Petitioner

Versus

D.P.O. and others---Respondents

Writ Petition No. 3631 of 2014, decided on 9th July, 2015.

Police Order [22 of 2002]---

----Arts. 11 & 18-A [as inserted by Punjab (Amendment) Act (XXI of 2013)]---Applications for change of investigation---Procedure---Authority of District Police Officer---Scope---Petitioner was accused nominated in FIR and his grievance was that second time investigation could not be transferred by District Police Officer---Validity---After decision was passed on one application for transfer of investigation by District Standing Board, the Head of District Police could not entertain another application for transfer---Subsequent application for change of investigation was termed as request for second change of investigation and application was to be submitted before Regional Police Officer, then it was discretion of Regional Police Officer to forward that application to Regional Standing Board within seven days or not to entertain the application---Once Regional Standing Board had decided the application, matter went out of the domain of Regional Police Officer---Third application for change of investigation had to be submitted before Provincial Police Officer, who was Inspector-General of Police, appointed under Art. 11 of Police Order, 2002---Provincial Police Officer had discretion to entertain the application or disallow the same---If application was entertained by Provincial Police Officer, then he had to put said application before Standing Review Board---District Standing Board, Regional Standing Board and Standing Review Board were all defined in Art. 18-A, Police Order, 2002, [as inserted by Punjab (Amendment) Act, 2013]---High Court set aside order passed by District Police Officer as the same was passed without lawful authority and in violation of Art. 18-A, Police Order, 2002, [as inserted by Punjab (Amendment) Act, 2013]---Petition was allowed in circumstances.

Ch. Shaukat Ali for Petitioner.

Malik Waseem Mumtaz, Additional Advocate-General along with Niaz, S.I.

2016 P Cr. L J 631

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

Sh. ABDUL RASHID---Petitioner

Versus

SHAHID ABBAS and others---Respondents

W. P. No.17023 of 2015, decided on 26th June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art. 199---Constitutional petition---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Petition for quashing of FIR---Petitioner/accused, was appointed general attorney for five persons---Out of said five persons, one had revoked the power of attorney vide cancellation deed, but despite said cancellation, accused sold her property through fraud vide sale-deed---Female, whose property was sold by accused, had filed suit for declaration and permanent injunction---Accused who was on pre-arrest bail, prima facie, was involved in a commission of cognizable offence---Police, would certainly collect the evidence in order to prove, whether accused was or not involved---Police investigation would not be interfered by High Court in the extraordinary constitutional jurisdiction---Civil and criminal cases could be proceeded side by side, there was no bar on the criminal proceedings in presence of civil suit---Sale deed in question was executed and registered in favour of vendee, after about 2 years from cancellation of power-of-attorney executed in favour of accused---No exception could be taken to the Police investigation, despite the pendency of civil suit filed by female whose property was so sold by accused---FIR disclosing the commission of cognizable offence, could not be quashed merely on the ground mentioned in the petition filed for quashing of FIR---Criminal and civil proceedings were distinct and different from each other---FIR could be quashed, if there were exceptional circumstances, and apparently disclosed that if the FIR would remain, there would be a danger of grave injustice been done---Police, in criminal cases, should be allowed to take the matter to its logical end---In the present case, criminal liability had not yet been fixed, it did not appear that case depended upon or connected with the result of civil litigation---High Court declined to quash FIRs in circumstances.

2000 SCMR 122; 2014 SCMR 741; PLD 1965 SC 90; 2011 MLD 1129; 2010 SCMR 511; 1998 SCMR 1840 and NLR 2013 Crl. 170 and AIR 1934 Kolkata 721 ref.

Shenaz Begum v. The Honourable Judges of the High Courts of Sindh and Balochistan and others PLD 1997 SC 677; Ghulam Muhammad v. Muzamil Khan and 4 others PLD 1967 SC 317; Malik Khuda Baksh v. The State 1995 SCMR 621 and Ghulam Muhammad v. Muzamil Khan and 4 others PLD 1967 SC 317 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Muhammad Nasir Chohan, A.A.-G. with Zubair, A.S.-I.

2016 P Cr. L J 654

[Lahore]

Before Muhammad Anwaarul Haq and Arshad Mahmood Tabassum, JJ

Mst. AYYAN ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 9211-B of 2015, decided on 14th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss.2(s), 156(1), 70, 157 & 178---Foreign Exchange Regulation Act (VII of 1947), S.8---Bail, grant of---Scope---Contention of prosecution was that accused attempted to smuggle out of Pakistan, Foreign Currency (US dollars), beyond permissible limit---Accused's plea was that such amount was sale proceeds of her five plots of land and that accused was to hand over the said amount to her brother, who was scheduled to arrive at the Airport---Held, that accused being a female had no previous criminal record and deserved some leniency in view of S.497, Cr.P.C.---Although the offence under S.156(1)(8) of Customs Act, 1969 carried a sentence of 14 years imprisonment, however act of taking foreign currency out of Pakistan beyond prescribed limit was not immoral or anti-social in nature, but was technical---Accused had since been remanded to judicial custody as such she was no more required for purpose of investigation, thus, her further detention would not serve any useful purpose---Petition was allowed and accused was granted bail subject to her furnishing bail bonds in sum of rupees five lac.

Mirza Farhan Ahmad v. The State 2009 SCMR 304 rel.

Sardar Muhammad Latif Khan Khosa, Sardar Khurram Latif Khan Khosa, Aamer Chaudhary and Nasir Ali Turabi for Petitioner.

Syed Zafar Abbas Deputy Attorney General of Pakistan with Muhammad Saleem Inspector Customs for the State.

Muhammad Amin Feroze Khan for the Complainant.

2016 P Cr. L J 662

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

Qari AHMAD YOUSIF---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 986 of 2015, heard on 9th December, 2015.

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

----S. 11-W & Fourth Sched.---Printing, publishing or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any proscribed organization or organization placed under observation for any concerned in terrorism---Appreciation of evidence---Benefit of doubt---Power to examine accused---Private witnesses regarding arrest and recovery not produced during investigation/trial---Co-accused released on same set of evidence---Source of prohibited material/pamphlet not found---No previous criminal record available on file---Accused, along with others, was alleged to have distributed pamphlets containing material of religious hatred---Trial Court convicted the accused under S. 11-W of Anti-Terrorism Act, 1997 and sentenced him to undergo imprisonment for five years along with payment of fine; and acquitted the co-accused giving him the benefit of doubt---Admittedly any witness from the public, who had been delivered the pamphlet allegedly held by the accused persons, had neither been associated with the investigation nor produced before the Trial Court, which was required to prove the alleged offence of disseminating, inciting religious, sectarian or ethnic hatred, punishable under S. 11-W of Anti-Terrorism Act, 1997---No pamphlet from any person delivered by the accused persons could be recovered during the investigation---Prosecution witness/Investigating Officer had admitted that during investigation no proof of involvement of the accused with any proscribed organization had been found and his name was not mentioned in the Fourth Sched. of Anti-Terrorism Act, 1997---No source of publication of the allegedly recovered pamphlets, the source from where the same had been obtained, could be dug out during the investigation and physical custody of the accused and acquitted co-accused---Culpability of the accused remained unwarranted, as the necessary ingredients to constitute mentioned offence were missing---Trial Court, disbelieving the same evidence against the co-accused, had acquitted him of the same charge and without any strong plausible and independent corroboration to the evidence furnished by prosecution witnesses had convicted accused, which could not be upheld---Prosecution had not filed appeal against acquittal of the co-accused---No previous criminal record of such like case had been put to the accused during his statement recorded under S. 342, Cr.P.C. nor any such record had been got proved in evidence by the prosecution---Prosecution had failed to prove the case against the accused beyond the shadow of reasonable doubt---Appeal was, therefore, allowed accordingly.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(b) Criminal trial---

----Benefit of doubt--- Principles--- Benefit of each and every doubt is to be extended to the accused---Only a single reasonable doubt qua the guilt of the accused is sufficient to acquit him of the charge.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(c) Criminal trial---

----Mistake of Judge (Qazi) in releasing a criminal is better than punishing an innocent person.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Nabeel Javed Kahloon for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Date of hearing: 9th December, 2015.

2016 P Cr. L J 697

[Lahore]

Before Muhammad Anwaarul Haq and Arshad Mahmood Tabassum, JJ

ADEEL HAIDER---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Home Department and 4 others---Respondents

Writ Petition No. 13843 of 2015, decided on 7th July, 2015.

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

----S. 11-EEEE---Detention---Member of proscribed organization---Petitioner was taken into custody and detained by authorities under S. 11-EEEE of Anti-Terrorism Act, 1997 as he was member of a proscribed organization---Validity---Conclusions drawn by inquiry officer were based on intelligence reports---No material was available to hold that such conclusions were irrelevant or without any substance---Petitioner regularly attended secret gatherings/meetings of proscribed organization and propagated nefarious designs of the organization---High Court declined to intervene in the detention order passed by authorities---Constitutional Petition was dismissed in circumstances.

Syed Iqbal Hussain Shah Gillani for Petitioner.

Sittar Sahil, Assistant Advocate-General for the State.

2016 P Cr. L J 714

[Lahore]

Before Erum Sajad Gull, J

MUHAMMAD SALEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.115 of 2015, decided on 13th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 337 & 338---Penal Code (XLV of 1860), Ss. 201, 302 & 365---Qanun-e-Shahadat (10 of 1984), Art. 16---Causing disappearance of evidence, qatl-i-amd and abduction---Accomplice/approver, evidence of---Petitioner was aggrieved of the order passed by Trial Court whereby respondent accused was allowed to appear as approver during pendency of trial---Objection raised by petitioner was that he being co-accused of respondent accused, his case would be prejudiced if she was allowed to become an approver---Validity---As a rule of prudence, statement of approver should not be accepted as gospel truth and such person could not be trusted who had betrayed his or her own comrades---For safe administration of justice, conviction should never be based on the sole testimony of an approver without independent corroboration---Under Art.16 of Qanun-e-Shahadat, 1984, though conviction could be based on the sole statement of approver, but such was not advisable---Court had the discretion to pardon an accused and allow him to become an approver and in a case of hurt or qatl, if victim or legal heirs had no legal objection then co-accused could not challenge his pardon as he would be given ample opportunity to cross-examine the approver---Order passed by Trial Court was not illegal as respondent accused was pardoned and allowed to become an approver by competent court with the permission of legal heirs---High Court upheld the order passed by Trial Court as the same as well reasoned and legal--- Revision was dismissed in circumstances.

Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan PLD 1989 SC 633; Haider Hussain and others v. Government of Pakistan and others PLD 1991 FSC 139 and Osborn's Concise Law Dictionary, 7th Edition ref.

Sajid Hussain Bhatti for Petitioner.

Muhammad Usman Riaz Gull for Respondent No.3.

Sheikh Muhammad Umar for Respondent No.4.

Ms. Ummul Baneen, Deputy District Public Prosecutor for the State.

Date of hearing: 13th November, 2015.

2016 P Cr. L J 722

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

ABDUL SATTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.400-J of 2011, heard on 28th May, 2015.

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

----Ss. 7(b) & 25---Penal Code (XLV of 1860), Ss. 324 & 336---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, act of terrorism---Appreciation of evidence---Accused along with another, was alleged to have thrown acid on face of victim causing serious injuries to her body --Accused was convicted and sentenced, whereas, the co-accused were acquitted---Validity---Medical evidence had fully supported ocular account of occurrence---Incident took place inside house, so presence of witnesses there was quite natural---Statement of victim was sufficient to uphold conviction and sentence---Two eye-witnesses, victim and her mother, both were consistent in their statement qua culpability of accused---Statement of victim had also been corroborated by two medical officers---Bottle of acid had been recovered from accused during investigation--- Motive was not always sine qua non for proof or disproof of guilt---All three sentences were ordered to run concurrently instead of consecutively---Prosecution had fully established its case against appellant--- Appeal was dismissed accordingly.

(b) Criminal trial---

----Motive---Motive is not always sine qua non for proof or disproof of guilt.

Arif Hussain Cheema for Appellant.

Zulfiqar Ali Tarab for the Complainant.

Tariq Javed, District Public Prosecutor for the State.

Date of hearing: 28th May, 2015.

2016 P Cr. L J 732

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. NUSRAT BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.233 of 2015, decided on 29th May, 2015.

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

----S. 7---Determination of age of accused---Inquiry, purpose of---Petitioner's plea was that inquiry was essentially to be held by court while determining age of accused---Validity---Inquiry to be held by court for determining age of accused was not a mandatory requirement for the reasons that documents, Form-B and Birth Certificate of accused had come on record from official custody and were prepared under National Database and Registration Authority Ordinance, 2000---Such documents enjoyed presumption of truth unless rebutted through very strong and cogent evidence.

Ghulam Abbas v. The State and others 2014 PCr.LJ 858 ref.

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

----S. 7--- Determination of age of accused--- Genuineness of documents---Contention of petitioner was that Form-B contained cutting which had made the same doubtful---Validity---Particulars mentioned in the Form did not contain and cutting or tampering---Document showed that birth entry was recorded in the official record and old registration number had also been mentioned in Birth Certificate meaning thereby that entry of birth of accused was made in the official record in 1999---Documents, in circumstances were genuine.

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

----S. 7---Determination of age of accused---Inquiry by court---Inquiry could be held in respect of age of accused during trial, if and whenever it appeared to be necessary to the court---Court had the discretion to see whether there was need to hold an inquiry for determination of age of accused person; if the court was not satisfied, it had jurisdiction to hold such inquiry by summoning original record.

Sultan Ahmed v. Additional Sessions Judge, Mianwali and 2 others PLD 2004 SC 758 and Ahmad Sher v. The State and another 2006 PCr.LJ 1450 rel.

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

----S. 7---Determination of age of accused---Medical test, purpose of---Whenever a question of age of an accused person was raised, he must be subjected to medical test unless strong reason existed or could be offered for not doing so.

Rana Ashfaq Ahmad Shafi for Petitioner.

Muhammad Ishaque, DPG for the State.

Mian Waheed Ahmad Majeed for Respondent No.2.

2016 P Cr. L J 746

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

HARIS BASHIR and 3 others---Petitioners

Versus

The STATE and another---Respondents

Crl. Misc. No.17114-B of 2014, Criminal Miscellaneous Nos. 554-B, 610-B, 928-B and 5592-B of 2015, dated 19th May, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 436, 353, 201, 186 & 148---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, mischief by fire and explosive substance, assault or criminal force to deter public servant from discharging of his duty, causing disappearance of evidence or offence, obstructing public servant in discharge of public functions, rioting, act of terrorism---Bail, refusal of---Present occurrence, was one of the worst examples of man's brutality---Occurrence was a gruesome murder in which two persons (spouses) were set ablaze in the oven of brick kiln and they were burnt to ashes---As the matter pertained to mob participation, its evaluation could not be done, while dealing with ancillary matters like bail, without minute examination of Police file---Five accused persons actively participated in the present occurrence---Out of those five, one had been scribed the key role of making speech to the mob, instigating them and persuading them to accomplish the nefarious design---Prima facie, reasonable grounds existed regarding culpability of said accused persons---To the extent of those accused persons; no case for their enlargement on post arrest bail was made out---Bail petitions of accused were dismissed, in circumstances.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 436, 353, 201, 186 & 148---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, mischief by fire or explosive substance, assault or criminal force to deter public servant from discharging of his duty, causing disappearance of evidence or offence, obstructing public servant in discharge of public functions, rioting, act of terrorism---Bail, grant of---Prosecution case to the extent of accused fell within category of column III---Possibility, could not be ruled out that said accused, at the time of incident, were going to attend a funeral ceremony at other village and they stopped over there being passerby---Genuineness of the prosecution to the extent of said two co-accused, would be evaluated during the course of trial after recording the prosecution evidence---Recovery from one of said two accused, was of general pattern---Mere opinion of the Police, could not be considered as sole ground to hold an opinion, but each criminal case had its own peculiar facts and circumstances---Where the occurrence, had taken place in pursuance of mob violation, the investigation carried out by senior Police Officers, had its own weightage---While considering liberty of a person as a precious right, as an abundant caution, it could be held that by detaining said two co-accused for an indefinite period, would be against the canons recognized for dispensation of criminal justice---Both said co-accused, were admitted to post-arrest bail, in circumstances.

Ch. Muhammad Ramzan for Petitioners.

Ch. Ashraf Hameed Sindhu for Petitioner (in Crl. Misc. No.928-B of 2015).

Ch. Naeem Asif for Petitioner (in Crl. Misc. No.610-B of 2015).

Rai Bashir Ahmed for Petitioner (in Crl. Misc. 554-B of 2015).

Aftab Ahmed Bajwa for Petitioner (in Crl. Misc. No.5592-B of 2015).

Munir Ahmed Sayyal, Deputy Prosecutor General.

Tahir Gull Sadiq and Riaz Anjum for the Complainant.

Akhtar Umar Hayat Laleka, D.I.G./Head of Joint Investigation Team, Syed Nadeem Abbas, S.P. (Investigation)/Kasur and Maqbool Ahmed, Inspector with record.

2016 P Cr. L J 756

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD HANIF and 3 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, PAKPATTAN SHARIF and 3 others---Respondents

Writ Petition No.5494 of 2015, heard on 19th June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 176---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-i-amd---Application for exhumation of dead body---Power to disinter corpses---Time for disinterment of dead body---Principles---Inquest report, preparation of---Cause of death---Determination---Requirement---Accused was alleged to have killed his wife through physical violence---Accused took plea that deceased had committed suicide by taking poison---Complainant filed application under S. 176, Cr.P.C. for exhumation of dead body of deceased, which was dismissed by Trial Court, but revisional court ordered disinterment of dead body of deceased for re-examination on ground that cause of death was still unknown---Contention raised by accused was that more than a year had elapsed since burial of deceased, so exhumation and re-examination of dead body could not reveal any mark of alleged violence---Held, deceased had admittedly died unnaturally---Medical Officer, having been informed by police that it was case of poison intake, might have shown lethargy in minutely examining dead body and in process over-looked marks of violence on that---Forensic report had categorically concluded that no poison could be detected in liver and stomach---Forensic report had ruled out possibility of deceased having committed suicide---Medical Officer could not find any traces of pathology during process of autopsy, nor could she find any signs of malfunctioning of heart, which lead to strong probability that her death was not natural phenomenon---Inquest report under S. 176, Cr.P.C. had to be taken to ascertain cause of death of deceased---First examination remained unconcluded as cause of death remained unknown---Mystery as to cause of death of deceased had to resolve, which was possibly only if her dead body was allowed to be disinterred and re-examined---No time limit was fixed by law for disinterment of dead body to determine cause of death---Disinterment could be ordered even after years under attending circumstance of present case---Process of knowing cause of death could not be left in the middle, and the same must have been taken to its logical end---Requirements of S. 176, Cr.P.C. had not been fulfilled as cause of death was still unknown---Impugned order of revisional court was maintained---Constitutional petition was dismissed in circumstances.

Majid Karim Khokhar for Petitioners.

Raza-ul-Karim Butt, Assistant Advocate-General Punjab with Nadeem, S.I.

Ch. Ijaz Ahmad for Respondent No.3.

Date of hearing: 19th June, 2015.

2016 P Cr. L J 769

[Lahore]

Before Muhammad Qasim Khan, J

MANSOOR MUMTAZ KHILJI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No. 13064-B of 2015, decided on 1st December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Cheque issued as security---Mala fide and ulterior motive on part of complainant---Bail before arrest, grant of---Word 'security cheque' were clearly mentioned on the back of the cheque---Complainant had in the FIR, and later before the Investigating Officer, had given two different purposes of issuing the cheque---Cheque, in said stances of the complainant, could not be said to have been issued towards repayment of loan or fulfillment of any obligation---Considering the material available on record, prima facie, the accused appeared to have been involved in the case due to mala fide and ulterior motives of the complainant---Recovery of amount under the disputed cheque could not be effected through criminal proceedings---Interim pre-arrest bail earlier granted to the accused was, therefore, confirmed accordingly.

Mian Muhammad Akram v. The State and others 2014 SCMR 1369 and Mian Allah Dita v. The State and others 2013 SCMR 51 rel.

Muhammad Ajmal Adil for Petitioner.

Ch. Muhammad Ishaq, Deputy Prosecutor-General with Maqbool Ahmad, ASI for the State.

Complainant in person.

2016 P Cr. L J 780

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

QAMAR ZAMAN and 2 others---Petitioners

Versus

The STATE and 2 others---Respondents

Writ Petition No. 8888 of 2010, decided on 2nd June, 2015.

Penal Code (XLV of 1860)---

----S. 338-E---Criminal Procedure Code (V of 1898), S. 345---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Constitution of Pakistan, Art. 45---Presidential Order of Special Remission granted to Juveniles Dated 13-12-2001 read with Ministry of Interior Letter No. F.S/41/2001/Pres. Dated 18-6-2002---Constitutional petition---Zina, zina-bil-jabr liable to tazir, Kidnapping, abducting or inducing woman to compel for marriage etc.---Waiver or compounding of offence--- Principles--- Age of accused---Determination---Accused were convicted and sentenced to death under Ss. 10 & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---High Court confirmed death sentence, and appeals and review were dismissed up to Supreme Court---Accused subsequently, having entered into compromise with victim and her father, filed application under S. 338-E, P.P.C. before Trial Court, which was dismissed---Contention of accused was that at the time of occurrence they were minors, and as their case was covered under Juvenile Justice System Ordinance, 2000, sentence of death inflicted upon them was not maintainable, particularly in compromise---Validity---Accused had been declared juvenile by Trial Court on their application filed under Juvenile Justice System Ordinance, 2000---Trial Court, after recording statements of victim and her father, had concluded that parties had entered into a genuine compromise---Under Presidential Order of special remission granted to Juveniles dated 13-12-2001 read with Ministry of Interior letter No.F.S/41/2001-Pres. dated 18-6-2002, death sentence of those condemned prisoners who were "juveniles" as defined in Juvenile Justice System Ordinance, 2000 at the time of commission of offence, would stand commuted to life imprisonment provided the death sentence had been awarded under Ta'zir and not under Qisas or other Hudood laws---Accused had been convicted under S. 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused, being juveniles, were, therefore, entitled to relief given under said Presidential Order---Report of Trial Court regarding compromise between the parties was relevant as the same had beneficial effects on relations between the parties and would promote peace, tranquility and harmony between families of the parties who all were residents of same vicinity---Death sentence was converted into life imprisonment and benefit of S. 382-B, Cr.P.C. was also extended to them--- Constitutional petition was accepted in circumstances.

Muhammad Bashir v. The State 1985 SCMR 81; Lal Din alias Lalu v. The State 1987 SCMR 855; Piran Ditta alias Peero and others v. The State 1988 SCMR 415; Atta Muhammad v. Ghulam Muhammad 1988 SCMR 1592 and Shakeel and 5 others v. The State PLD 2010 SC 47 ref.

Malik Noor Muhammad Awan, Malik Muhammad Khalid Awan and Shoiab Zafar for Petitioners.

Muhammad Ashfaq Kharal, Assistant Advocate General for the State.

2016 P Cr. L J 801

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

MUHAMMAD AHSAN NASEER BUTT---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.222 of 2015, decided on 29th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 427, 148 & 149---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Qatl-i-amd, mischief causing damage, rioting, common object---Appreciation of evidence---Determination of age of accused---Application filed by accused to declare him juvenile and separation of his case from other accused person, was dismissed by the Trial Couct---Validity---Accused claimed that he was less than 18 years at time of occurrence---Medical Board, duly constituted, unanimously opined that accused was aged about 16-1/2 years of age at the time of occurrence---Birth Certificate, issued with late entry, had fully corroborated the opinion of Medical Board/ossification test---Medical test/ossification test, though a better guide, but not accurate estimate---Possibility of margin of one year on either side existed---Ossification test was only an estimated assessment; and Medical Board could not determine the age of accused with certainty---Medical report, could be preferred over school leaving certificate, but in the present case, it was not the matter of school leaving certificate, as date of birth of accused was shown in matriculation certificate and that was the primary certificate which would travel upto highest education level---Very narrow scope was available for entry of wrong date of birth at that time--Accused had failed to establish that he was below the age of 18 years at the time of alleged occurrence---Order passed by the Trial Court was well reasoned, and the enquiry conducted by the Trial Court was as per requirement of S.7 of Juvenile Justice System Ordinance, 2000---Order passed by the Trial Court; old not be interfered with, in circumstances.

PLD 2007 Lah. 392; Muhammad Zakir v. The State and another 2004 SCMR 121; Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073 and Muhammad Hayat v. Muhammad Iqbal 2002 PCr.LJ 1237 rel.

Munazzar Ghani Chaudhary for Petitioner.

Tariq Javed, DPP for the State.

2016 P Cr. L J 820

[Lahore]

Before Manzoor Ahmad Malik, C.J.

QASIM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 330-J of 2012, heard on 22nd June, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra judicial confession---Motive, failure to prove---Accused was convicted by Trial Court on the basis of his extra judicial confession made before prosecution witness and sentenced him to imprisonment for life---Validity---Evidence of extra judicial confession was not worthy of reliance---No motive was alleged in FIR and thereafter a vague motive was set up by complainant in supplementary statement to the effect that 4-5 days prior to occurrence, accused demanded Rs.20,000/- from complainant and his wife, which they refused and accused showed his anger on their refusal---Difference of loan amount differed, as in supplementary statement, complainant alleged Rs.20,000/- whereas before Trial Court loan amount was stated as Rs.2,5000/---No witness was produced before Trial Court in whose presence accused demanded loan amount, therefore, prosecution was not able to prove motive---High Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him and he was acquitted of the charge---Appeal was allowed in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javed v. The State 2009 SCMR 166 rel.

(b) Criminal trial---

----Medical evidence---Scope---Such evidence is at the most a supporting piece of evidence because it may confirm ocular evidence with regard to receipt of injury, its locale, kind of weapon used for causing injury, duration between injury and death but it does not tell name of the assailant.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Chhurri (knife) not stained with blood---Effect---Recovery of Chhurri (knife) allegedly effected at the instance of accused which was taken into possession vide recovery memo was not of much help to prosecution, as prosecution witness stated during cross examination that recovered Chhurri (knife) was not stained with blood.

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

----S. 342---Piece of evidence not put to accused---Effect---Piece of evidence not put to accused in his statement under S. 342, Cr.P.C., cannot be used against him.

(e) Criminal trial---

----Benefit of doubt---Principle---When case of prosecution is doubtful in nature, accused is entitled to benefit of doubt not as a matter of grace but as of right.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Zafar Hussain Chaudhry appointed as Defence Counsel at State expense for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Ch. Nisar Ahmed Kauser Kamboh for the Complainant.

Date of hearing: 22nd June, 2015.

2016 P Cr. L J 844

[Lahore]

Before Aalia Neelum and Mirza Viqas Rauf, JJ

MUHAMMAD FAAZIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 302 of 2013, heard on 25th June, 2015.

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

----Ss. 9(c), 35 & 36---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Glaring discrepancies existed in the statements of both the prosecution witnesses---Defence witness produced by accused, was Deputy Assistant Director ASF, (Airport), who supported the version of accused; his statement could not be ignored---Analysis of the sample of recovered narcotics, was actually conducted by the Bio Chemist, and not by the Chemical Examiner himself---Bio Chemist could not be termed as Government Analyst in terms of S.35 of the Control of Narcotic Substances Act, 1997---Report of Bio Chemist though bore the signatures of the Chemical Examiner, but same could not be equated or termed as a report prepared by the Government Analyst---Said report would become admissible only after fulfilling of the pre-requisite laid down in S.36 of the Control of Narcotic Substances Act, 1997---Prosecution, having failed to establish the substantial compliance of S.36 of the Control of Narcotic Substances Act, 1997, rendered the report inadmissible---Statement of Chemical Examiner with regard to quantity of sample received by him, being discrepant, his report did not support the prosecution case on that aspect---Prosecution had failed to establish that the sample received in the Office of Chemical Examiner was actually related to the case---In the light of serious discrepancies, prosecution had failed to discharge its onus---Recovery proceedings conducted by the Investigating Officer, were not free from doubt---Case of prosecution was fraught with doubts, and for earning relief of acquittal, accused was not obliged to establish number of circumstances creating doubts, but even a single circumstance, creating a reasonable doubt in the prudent mind, was sufficient to extend the benefit of doubt to accused---Impugned judgment passed by the Trial Court, was set aside; accused was acquitted of the charge levelled against him and was released, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002; The State through Collector of Customs (Preventive) Government of Pakistan v. Sajjad Muhammad Jaffer and 2 others 2007 PCr.LJ 1984; Muhammad Zaman v. The State and others 2014 SCMR 749 and Muhammad Ashraf and others v. The State and others PLD 2015 Lah. 1 ref.

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

----S. 342--- Examination of accused--- Object and scope--- No incriminating material could be used against accused, unless it was put to him during his statement under S.342, Cr.P.C.---Purpose behind that principle was that accused must be aware of all the material evidence, which was to be used against him---When accused was not confronted with the material, which was brought in the evidence, accused would not be in a position to refute the same properly---Such lapse on the part of prosecution, would be fatal, and would go to the roots of the prosecution case---Recording of statement under S.342, Cr.P.C., was not a mere formality, but its primary object was to afford accused an opportunity of explaining the circumstances, which were tending to incriminate, and likely to influence the mind of the Judge in arriving at a conclusion adverse to him.

Asif Ali Zardari and another v. The State PLD 2001 SC 568; Munir Ahmed alias Munni v. The State 2001 SCMR 56 and Ashraf and 4 others v. The State 2004 PCr.LJ 42 ref.

Sardar Muhammad Ishaq Khan for Appellant.

Syed Intikhab Hussain Shah, Special Prosecutor for Anti-Narcotic Force for the State.

Date of hearing: 25th June, 2015.

2016 P Cr. L J 870

[Lahore]

Before Ibad ur Rehman Lodhi and Zafarullah Khan Khakwani, JJ

MUHAMMAD ARSHAD alias ARSHI SHAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 107 of 2011, heard on 30th October, 2014.

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

----S. 13---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7---Anti-Terrorism Act (XXVII of 1997), Ss.2(t), Third Schedule [as amended by Punjab Government Notification No.SO(Judl-1) 10 (1-36(1) 2010 dated 5-9-2012], 6, 7 & 12---Recovery of unlicensed arms and explosive substances---Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Accused was apprehended by the Police, and on his search a loaded Kalashnikov, a Jacket with five loaded magazines, and two hand-grenades were recovered from his possession---Accused was charge-sheeted and convicted under S.13 of Pakistan Arms Ordinance, 1965 and S.4 of Explosive Substances Act, 1908 by Anti-Terrorism Court---Accused was neither charge-sheeted under any provision of Anti-Terrorism Act, 1997, nor he was punished under the said Act---Offence allegedly committed by accused, was made triable by Anti-Terrorism Court vide notification No.SO(Judl-1), 10(1-36(1)2010 dated 5-9-2012, which was issued by Government of Punjab after about 6 months of taking place of occurrence and about four months after framing of charge against accused---Offence, committed by accused did not fall within the jurisdiction of Anti-Terrorism Court on the day when the same was committed, and even when Trial Court framed the charge---Charge, in circumstances, was framed by the Trial Court on wrong premises and proceedings being coram non judice were liable to be vitiated---Accused was also charge-sheeted/convicted and sentenced under the Explosive Substances Act, 1908---Section 7 of Explosive Substances Act, 1908 imposed restriction on trial of offences except with consent of the Provincial Government, but trial of accused commenced without prior consent of the Provincial Government; whereas, the consent was mandatory and a condition precedent for prosecution of accused under S.5 of Explosive Substances Act, 1908---Case, in circumstances, was badly conducted in the eyes of law.

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

----S. 13---Explosive Substances Act (VI of 1908), Ss.4 & 5-A---Possessing unlicensed arms and explosive substances---Appreciation of evidence---Benefit of doubt---FIR mentioned that at the time of apprehension, a loaded Kalashnikov, a Jacket with five loaded magazines and two hand-grenades were recovered, whereas Police Officials, in their statements added rifle SMG and rifle with magazine, which did not find mention in the recovery memo.---Neither accused was charged for having a rifle SMG and another rifle, nor the rifles were put to accused under S.342, Cr.P.C. which had shown mala fide and ulterior motive on part of Police Officials to fully involve accused in the case---Trial Court neither exhibited the rifles, nor took any notice, as to where those rifles had vanished---Shady character of one Police Official, coupled with his contradictory statement; as also suspension and arrest of other Police Officer due to alleged escape of accused from his custody, were the circumstances, which created serious doubt about the recovery in the case---Such appeared to be a case of classic example of "hands in glove" on the part of Police Officials---Possibility of weapons, having been planted by Police Official upon accused with the connivance of other Police Official, could not be ruled out---Where evidence would create doubt about the truthfulness of prosecution story, its benefit had to be given to accused without any reservation; and to acquit accused by giving him benefit of doubt---Accused having succeeded to make out his acquittal on merits, as also on the basis of his trial being coram non judice, conviction and sentences of accused were set aside, he was acquitted of the charge and was set at liberty, in circumstances.

Muhammad Ilyas v. The State 1997 SCMR 25 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

Malik Muhammad Saleem for Appellant.

Hassan Mahmood Tareen, Deputy Prosecutor General for the State.

Date of hearing: 30th October, 2014.

2016 P Cr. L J 888

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

ABDUR REHMAN---Appellant

Versus

SABIR HUSSAIN and 6 others---Respondents

Criminal Appeal No. 1767 of 2006, decided on 13th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-L (2), 148 & 149--- Criminal Procedure Code (V of 1898), S. 417 (2A)--- Qatl-i-Amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, Shajjah-i-mudihah, other hurts and rioting armed with deadly weapons---Appeal against acquittal---Scope---Appreciation of evidence---Suppression of injuries---Complainant was aggrieved of judgment passed by Trial Court whereby accused persons were acquitted of the charge---Validity---Deliberate intention on the part of prosecution to suppress injuries on accused---Evidence of interested and inimical witnesses, the attending circumstances and serious infirmities regarding non-explanation of injuries on the person of accused, suppressing genesis of the incident etc. had made prosecution case highly untrustworthy---Judgment of Trial Court was based on correct appreciation of evidence and law on the point and it did not suffer from any illegality or perversity---If two views were possible, the former would prevail over the latter---Appellate Court could interfere with the judgment of acquittal, if it had come to the conclusion that Trial Court had misread or did not appreciate evidence in its true perspective or that the judgment suffered from inherent illegality or perversity---High Court declined to interfere as judgment of Trial Court did not suffer from any illegality and perversity and the view taken by it could be possible on the basis of evidence---Prosecution failed to prove its case beyond all reasonable doubts and story of occurrence was highly doubtful, the witnesses were inimical and they had given contradictory statements on medical points and also suppressed the facts---Appeal against acquittal was dismissed, in circumstances.

Ch. M.S. Shad for Appellant.

Muhammad Naseem Akhtar Khan, Deputy District Public Prosecutor for the Respondents.

2016 P Cr. L J 903

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SHABBIR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.142 of 2005, heard on 1st July, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Matter was reported to the Police after unexplained delay of more than eight and half hours---Postmortem examination on the dead body of the deceased, was also conducted with unexplained delay of about ten and half hours---Presence of the witnesses at the scene of occurrence at the relevant time was doubtful---Conviction could be based on the strength of solitary witness, provided, evidence of said solitary witness inspired confidence; and was of unimpeachable character---In the present case, solitary witness was not cited as the eye-witness of the occurrence in the crime report; had said witness, along with the complainant witnessed the occurrence, he would have reported the matter to the Police promptly, but that had not been done in the case---Statement of said witness was discrepant with the medical evidence---Incident was a dark night occurrence, and no source of light was shown in the site plan---Tractor trolly in the light of which prosecution witness claimed to have witnessed the occurrence, was never available to the prosecution to establish the identification of accused, as the same was never taken into possession by the Police during the investigation---Statement of said solitary witness, was also pregnant with material improvements, which had made his testimony unreliable and untrustworthy---Material witness, who was living adjacent to the place of occurrence, was not joined with the investigation---Prosecution withheld evidence of (given up prosecution witness), which also led the court to infer against the prosecution case---Crime empty taken into possession from the place of occurrence; and 30 bore pistol allegedly recovered at the instance of accused, were not sent to Forensic Science Laboratory for comparison---Alleged recovery of pistol, was inconsequential and was sufficient to give benefit to the accused---Present case was replete with circumstances which had created doubts about the prosecution story---Prosecution, having failed to prove its case against accused beyond shadow of reasonable doubt; conviction and sentence recorded by the Trial Court against accused, was set aside and he was acquitted of the charge levelled against him by extending him benefit of doubt---Accused, being on bail, his bail bonds were discharged and sureties were released, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Muhammad Riaz v. The State 2009 PCr.LJ 1022 and Irshad Ahmed v. The State 2011 SCMR 1190 rel.

Kamran Khan Niazi for Appellant.

Sarfraz Ahmad Khatana, Deputy District Public Prosecutor for the State.

Date of hearing: 1st July, 2015.

2016 P Cr. L J 929

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

SAJAWAL KHAN and 4 others---Petitioners

Versus

AMIR SULTAN and 11 others---Respondents

Writ Petition No. 1187 of 2015, decided on 2nd June, 2015.

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

----Ss. 3(1)(2), 7 & 8---Criminal Procedure Code (V of 1898), S.417(2)---Constitution of Pakistan, Art.199---Illegal dispossession, complaint against---Petition for special leave to appeal against acquittal--- Prima facie, dispute between the parties was of civil nature---Respondents/alleged accused persons, had not taken the possession of the land of the complainant illegally and forcibly, and the complaint was based on mala fide and false facts---Respondents did not belong to Land Mafia, Qabza Group or property grabbers---Presumption of double innocence was available to acquitted accused persons---When an accused was acquitted of the charge, he would enjoy double presumption of innocence in acquittal appeal under S.417, Cr.P.C., which could not be dislodged---Two views being always possible while appreciating the evidence on record, in order to avoid multiplicity of litigation, it was always insisted that court should follow recognized principles for interference in acquittal judgment---No illegality and infirmity having been pointed out in the impugned judgment passed by the Trial Court, petition being meritless, was dismissed in circumstances.

Sarfraz Ahmed v. Mst. Naheed 2014 PCr.LJ 1659; PLD 1989 SC 293 and Ghulam Sikandar v. Namrad Khan PLD 1985 SC 11 ref.

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

----Preamble--- Illegal Dispossession Act, 2005--- Scope and applicability---High Court observed that Illegal Dispossession Act, 2005, though was restricted in its scope and applicability to illegal dispossession from immovable properties only by a particular class of persons, who could qualify as property grabbers/qabza groups/land mafia, but the Act, was being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties; even by individuals; who had no credentials or antecedents of being property grabbers or being members of a qabza group or land mafia---Such abuse and wrong utilization of said Act, had been found to be completely nugatory to its contents as well as objectives---Through a mistaken or deliberate misuse of said Act, the legal remedies already occupying the field against ordinary dispossession from immovable properties, had been dispossessed of the field---Such was not the intent or spirit of the Illegal Dispossession Act, 2005---Said Act was an Act to curb the activities of property grabbers---Preamble to the Act had clarified in no uncertain terms that "whereas it was expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers"---Intention of the Legislation, was quite evident from the working papers prepared by the Federal Ministry of Law and Human Rights and submitted before the Parliament; with the draft; or the proposed Legislation; as well as from the Parliamentary debates on the proposed Legislation---Both such sources were generally recognized as valid and useful sources, which could be utilized by a court of law for the purpose of interpreting a piece of Legislation; by appreciating the spirit in which it was introduced, passed and enacted; and for understanding the mischief, which was sought to be suppressed.

Habib Ahmad v. Abdul Manan 2012 SCMR 1533 rel.

Samar Abass Zewaqar Haider for Petitioners.

2016 P Cr. L J 953

[Lahore]

Before Muhammad Tariq Abbasi and Aslam Javed Minhas, JJ

ANTI-NARCOTICS FORCE through Assistant Director, ANF, Multan---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 354 of 2007, heard on 24th June, 2015.

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

----Ss. 9(b) & 47---Probation of Offenders Ordinance (XLV of 1960), Ss.3 & 5---Criminal Procedure Code (V of 1898), S.562---Possessing and trafficking narcotics---Sending accused on probation---Appreciation of evidence---Heroin weighing 450 grams was recovered from female accused, whereas 300 grams from male accused who was juvenile---Accused persons, who made confession, and both admitted that narcotic in question, was recovered from them---Accused persons, requested for pardon, with an undertaking that in future they would never indulge in such like activity---On the basis of said confessional statements Trial Court convicted accused persons under S.9(b) of the Control of Narcotic Substances Act, 1997, and sentenced them to R.I. for two years and nine months, each with fine of Rs.20,000 each, with benefit of S.382-B, Cr.P.C.---Accused persons were dealt with under S.5 of Probation of Offenders Ordinance, 1960, and given under the supervision of the Probation Officer for a period of three years; with the reasoning that female was of young age and household lady, whereas male accused was a juvenile being less than 18 years, and also sole earning member of his family---Said order of sending accused persons on probation was objected to by Special Prosecutor for ANF, contending that court constituted under Control of Narcotic Substances Act, 1997, was not at all competent to send accused persons on probation---Under S.3 of Probation of Offenders Ordinance, 1960, High Court, a court of Session, a Magistrate 1st Class, and any other Magistrate, especially empowered in that behalf, could exercise powers under said Ordinance, whether the case came before it for original hearing, or in appeal or in revision---Provisions of Code of Criminal Procedure, 1898, would be applicable during trial and appeal, unless not expressly excluded---Criminal Procedure Code, 1898 being applicable to narcotic cases, S. 562, Cr.P.C., could not be brushed aside---Court in narcotic case, if deemed it proper, could send accused on probation---Objection being misconceived was rejected; and appeal having no force, was dismissed.

Ms. Humaira Naheed Khand, Advocate/Special Prosecutor for ANF.

Date of hearing: 24th June, 2015.

2016 P Cr. L J 968

[Lahore]

Before Mazhar Iqbal Sidhu and James Joseph, JJ

ABRAR SHEIKH and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 196 of 2014 and W.P. No. 9460 of 2014, decided on 16th March, 2015.

Penal Code (XLV of 1860)---

----S. 386---Anti-Terrorism Act (XXVII of 1997), S.7---Extortion by putting a person in fear of death or grievous hurt, act of terrorism---Appreciation of evidence---Benefit of doubt---Matter was reported to the Police after four days of occurrence---Alleged chit wherein amount of Rs.5000 was written and asked the complainant for handing over said amount to accused, did not bear the signatures and date---Alleged racketeering chit had not been proved by any cogent evidence that the same was prepared by accused---Recovery of the alleged racketeering amount being commonly available in the market, had no evidentiary value without independent corroboration---Conduct of the complainant had been noticed topsy-turvy---Prosecution version ran counter to the rational probabilities of an ordinary prudent person--- Nothing was recovered from accused during the investigation---Prosecution's case had been found doubtful---Prosecution having failed to prove its case against accused beyond shadow of reasonable doubt, impugned judgment of conviction and sentence was set aside, accused was acquitted of the charge and was released, in circumstances.

Ch. Shakir Ali and Tariq Aziz Khokhar for Appellants.

Nasir Hussain Haidery for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Date of hearing: 16th March, 2015.

2016 P Cr. L J 986

[Lahore]

Before Syed Muhammad Kazim Roza Shamsi, J

MUHAMMAD NAWAZ alias ASIF alias PHALLO---Petitioner

Versus

The SUPERINTENDENT CENTRAL JAIL GUJRANWALA and others---Respondents

W. P. No. 31279 of 2014, decided on 4th February, 2015.

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

----S. 21-F---Constitution of Pakistan, Art. 199---Constitutional petition---Remissions---Retrospective effect---Scope---Plea raised by petitioner was that occurrence took place prior to insertion of S. 21-F in Anti-Terrorism Act, 1997, therefore, he was entitled to benefit of remissions---Validity---Law prevalent at the time of commission of crime would hold the field and provisions of S. 21-F of Anti-Terrorism Act, 1997, did not contain anything showing intention of the Legislature that the provisions would be applicable to cases retrospectively---Although petitioner was convicted and sentenced after promulgation of S. 21-F, of Anti-Terrorism Act, 1997, yet he would be entitled for benefits which were made available to him at the time when crime was committed by petitioner---Jail authorities wrongly denied right and benefits to petitioner, so the same needed to be corrected---High Court directed jail authorities to grant petitioner remissions which were admissible to him and release him from the custody, if he had completely served out his sentence awarded by Trial Court---Petition was allowed in circumstances.

Shah Hussain v. The State PLD 2009 SC 460; M. Aslam Mouvia v. Home Secretary and others PLD 2011 Lah. 323; Abdul Qadir Tawakkal v. The State PLD 2013 Sindh 481 and Colonial Sugar Mills's case 1906 (A.C.) 307 rel.

Malik Abdul Wahid for Petitioner.

Raza-ul-Karim Butt, Assistant Advocate-General with Kamran Anjum, Superintendent, Central Jail, Gujranwala and Mudassar, Deputy Superintendent Jail.

2016 P Cr. L J 994

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

JAVED IQBAL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 76 of 2007, heard on 13th May, 2015.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i­-amd, common intention---Appreciation of evidence,--Benefit of doubt---` Confession by accused made while in police custody not to be used against him---Principle---Last seen evidence---Admissibility---Memo of identification regarding place of occurrence---Admissibility---Positive forensic report, evidentiary value of---Accused was alleged to have killed deceased after taking him away from company of his family members---Motive assigned for alleged murder was that deceased had made indecent advances towards his daughter-in-law, real sister of accused--- Trial court convicted accused under S. 302(b), P. P. C. as Ta'zir and sentenced him to life imprisonment along with awarding fine---Initial silence of complainant after deceased's failure to return home was intriguing; in natural course of events, complainant should have approached accused, who was alleged to have taken away deceased, to inquire about whereabouts of deceased---Was improbable that accused would take deceased to put him to homicidal death within view of his family members---Last seen evidence was unrealistic and flawed---Place of occurrence, as shown in site plan, was already within knowledge of complainant---Subsequent reference to place of occurrence by accused and memo. of identification prepared in pursuance thereof while accused was in custody of police was hit by Art. 39, Qanun-e-Shahadat, 1984 as nothing new was discovered:- Memo. allegedly prepared regarding place of occurrence on pointation by accused could not be admitted in evidence---Last seen evidence could not sustain charge as it was without proximity in time and space--- Positive forensic report about crime weapon and empties secured from spot was merely corroborative---One weak piece of evidence could not corroborate, another piece of evidence---High court, extending benefit of doubt, acquitted accused---Appeal was allowed in circumstance.

(b) Criminal trial--

--Circumstantial evidence---Principles---Circumstantial evidence must come from unimpeachable source with such quality that must exclude every hypothesis of innocence---Such evidence must constitute nexus through chain of circumstances linking crime with culprit.

(c) Criminal trial---

----Evidence---Corroboration of---Principles---One weak piece of evidence cannot corroborate another piece of evidence.

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

----Art. 39----Scope---Confession made by accused while being in police custody not to be used against him---Principles---Place of occurrence, as shown in site plan, was already within knowledge of complainant---Subsequent reference to place of occurrence by accused and memo of identification prepared in pursuance thereof while accused was in custody of police was hit by Art. 39, Qanun-e-Shahadat, 1984 as nothing new had been discovered---Memo. allegedly prepared regarding place of occurrence on pointation by accused could not be admitted in evidence.

Nasir Fiaz Khaira for Appellants.

Mirza Abid Majeed, DPG for the State.

Waseem Sarwar Khan for the Complainant.

Date of hearing: 13th May, 2015. .

2016 P Cr. L J 1007

[Lahore]

Before Aslam Javed Minhas, J

BASHIR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 210 of 2015, decided on 2nd July, 2015.

Punjab Information of Temporary Residents Ordinance (II of 2015)---

----Ss. 7, 11 & 12(2)---Failure to give information to the Police Station concerned regarding rented premises---Allegation against the petitioner, was that he rented out a house to tenant, but had not given any information regarding that rented premises to the concerned Police Station; and had committed offence under S. 11(2) of Punjab Information of Temporary Residents Ordinance, 2015---Magistrate Section 30, after recording confessional statement of the petitioner, convicted him and sentenced him to imprisonment till rising of the court with fine of Rs.10,000---Appeal filed by the petitioner was dismissed by Additional Sessions Judge/Appellate Court below---Validity---Under provisions of S. 7 of the Punjab Information of Temporary Residents Ordinance, 2015, Police, firstly was required to inspect the area by visiting door to door, and collect information about the residents of the houses; as to whether they were owner or the tenant---Whereafter, the proper course was that for the existing temporary residents/tenants, prescribed pro forma data of the inmates, was to be collected; and then, if someone showed reluctance or ignorance, then the action according to the penal clause should have been initiated--- All said ingredients, in the present case, were missing---Police was required to enforce provisions of law after a reasonable notice, but they acted just on the information of Police informer, without observing said requisites---Finding of the Appellate Court below that petitioner had failed to bring on record any evidence in support of his plea being not owner of the rented house, was misconceived---Prosecution had to stand on its own legs---Conviction must be based on unimpeachable evidence, and certainty of guilt, and any doubt arising in the prosecution case, must be resolved in favour of accused---Area Magistrate, was required to conduct the summary trial, when matter came before him, but he failed to do so---Magistrate, though was competent under S.12 of Punjab Information of Temporary Residents Ordinance, 2015, to initiate criminal proceedings against the petitioner, but he could not have done the same by directing Police to conduct an inquiry/investigation---No where was in the record that the Magistrate put question to the petitioner, whether house in question belonged to him or not---Impugned order of the Magistrate, and that of Appellate Court below, were set aside, and the petitioner was acquitted of the charges---Fine of Rs.10,000 realized from the petitioner was ordered to be returned to the petitioner after observing due formalities.

Muhammad Yousaf v. The State 1995 SCMR 351; Malak Jehangir Khan and others v. Sardar Ali and 2 others 2007 SCMR 1404; Asif Zaheer and another v. The State 2010 YLR 3191; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Muhammad Afzal Bhatti for Petitioner.

Ch. Muhammad Akbar, DPG along with Muhammad Hussain SI and Ashfaq Ali, S.I. for the State.

Date of hearing: 2nd July, 2015.

2016 P Cr. L J 1036

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

MUHAMMAD BOOTA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1051 of 2009, heard on 28th October, 2015.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence--- Prosecution had neither established safe custody of recovered substance, nor had produced the constable as witness to establish that complainant/Inspector handed over to him recovered substance and that accused were sent to Police Station---Complainant/Police Inspector in his statement in the court, had deposed that he sent both parcel and accused to Police Station, but other Police Officials gave inconsistent and contradictory statements---Said inconsistencies and contradictions led to an irresistible inference that the prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence---Samples, in the case had been tampered and variation had been found in the weight of alleged recovered substance---Lacuna existed in the evidence produced by the prosecution to prove that recovered substance (Poppy straw) was deposited in Malkhana and same was not tampered with---Alleged recovered substance, was shrouded in mystery and remained unexplained as to what was recovered from the possession of accused---Strong doubt existed as to whether the sample analyzed by the Chemical Examiner was taken out of same material that was allegedly recovered from accused at the time of raid---Said discrepancy had created a reasonable doubt with respect to the link evidence produced on behalf of prosecution---Alleged contraband was not weighed at the spot---In the light of numerous contradictions, in the conduct of prosecution witnesses, their testimony failed to inspire confidence---Prosecution had not been able to prove the charge levelled against accused---In view of inherent illegality in the matter, conviction of accused was set aside; he was acquitted of the charge, and was directed to be released.

Ms. Amera Salam, Advocate-Defence Counsel for Appellant.

Muhammad Atif Rao, DDP and Zulfiqar, SI with Record for the State.

Date of hearing: 28th October, 2015.

2016 P Cr. L J 1054

[Lahore]

Before Muhammad Anwaarul Haq, J

Mian UMER IKRAM-UL-HAQ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and 15 others---Respondents

Writ Petition No.35779 of 2015, decided on 4th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 200---Dismissal of application for registration of criminal case by Ex-Officio Justice of Peace---Private complaint---Petitioner was aggrieved of the order passed by Ex-Officio Justice of Peace dismissing application of petitioner for registration of criminal case---Validity---Private complaint filed by petitioner was dismissed for want of prosecution after dismissal of application under Ss. 22-A & 22-B, Cr.P.C.---Petitioner had already availed alternate remedy by filing private complaint regarding the similar occurrence, therefore, he could not invoke jurisdiction of Ex-Officio Justice of Peace---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Constitutional petition was dismissed in circumstances.

Ch. Jawad Zafar for Petitioner.

Sittar Sahil, Assistant Advocate-General with Amjad Ali, S.I.

Ch. Shaigan Ijaz Chadhar for Respondent No.3.

2016 P Cr. L J 1080

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

HAJI MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSION JUDGE, LAYYAH and 10 others---Respondents

Writ Petition No. 2625 of 2007, decided on 23th June, 2015.

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

----S. 145--- Constitution of Pakistan, Art. 199---Constitutional petition---Dispute concerning land, etc., likely to cause breach of peace---Powers of Magistrate---Scope---Right to title and possession of property---Principles as to determination---Termination of civil litigation---Effect---Petitioners sought restoration of possession claiming that they were in possession of suit land before initiation of proceedings under S. 145, Cr.P.C. while civil litigation was pending between parties regarding dispute as to title of suit land---Magistrate delivered possession of suit land to respondent on ground that pendency of civil litigation between parties had already terminated---Revisional court maintained order of Magistrate---Validity---Provision of S. 145, Cr.P.C. envisaged apprehension of breach of peace regarding immovable property as jurisdictional requirement---Issue as to possession of parties could only be looked into by Magistrate after said jurisdictional requirement had been satisfied---Purpose of S. 145, Cr.P.C. was to prevent imminent apprehension of breach of peace over immovable property---Section 145, Cr.P.C. did not authorize Magistrate to exercise jurisdiction in mere existence of dispute relating to immovable property---Magistrate, on receipt of application from party, had to pass order under S. 145(1), Cr.P.C. and was required to call for report of police---If Magistrate was satisfied with the said report or from any other information, as to existence of dispute between parties pertaining to immovable property which was likely to cause breach of peace, he might pass interim order in terms of S. 145(4), Cr.P.C.---Magistrate was then to proceed to record evidence of parties to determine as to which party was in possession of property in dispute prior to his unlawful dispossession---In proceedings under S. 145, Cr.P.C., Magistrate had to take cognizance on report of police and on his satisfaction as to existence of imminent danger of breach of peace---In case there was no sufficient material for passing said interim order, Magistrate was to hold inquiry as provided under S. 145, Cr.P.C. by examining parties and pass final order thereby restoring possession of party who had been dispossessed two months prior to its wrongful dispossession under S. 145(6), Cr.P.C.---If, after inquiry, material brought on record was not sufficient to record finding regarding possession, Magistrate might order attachment of property in terms of S. 145(1), Cr.P.C.---Section 145, Cr.P.C. did not curtail powers of Magistrate to pass final order under S. 145(6), Cr.P.C. after holding inquiry in case of his failure to pass preliminary order under S. 145(4), Cr.P.C. within two months---Only restriction imposed on powers of Magistrate was that party to whom possession had been restored must have been dispossessed within two months of complaint---Magistrate while conducting inquiry was neither competent to decide title of any party nor his right to possession---Section 145, Cr.P.C. only empowered the Magistrate to make inquiry to regulate possession of property in dispute for the time being to avert apprehension of breach of peace---Possession, in the present case, had already been delivered to respondent, who was owner thereof---Magistrate, with consent of parties, had appointed Receiver of suit land and handed over its possession to respondent till decision of suit--- Petitioners had failed to produce any document showing their right, title and interest in suit land---Constitutional petition was dismissed in circumstances.

Mukhtar Ahmad v. Haji Muhammad Saleem 2013 SCMR 357 rel.

(b) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Scope--- Constitutional jurisdiction is discretionary relief, which is to be exercised to meet ends of justice and not injustice---Discretionary relief cannot be granted to party even if order of courts below are defective due to any technical reason.

Messrs Best Buy Computers, Lahore and another v. Director, Intelligence and Investigation (Customs and Excise), Lahore and others 2009 SCMR 19; Multan Electric Power Company, LTD through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Malik Muhammad Nawaz v. Municipal Committee, Pattoki and others 2003 SCMR 1191; Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462 and Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.

Ahsan Raza Hashmi for Petitioner.

Ch. Muhammad Akram for Respondent No.4.

2016 P Cr. L J 1089

[Lahore]

Before Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ

MUHAMMAD ARSHAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 908-J of 2015 and Murder Reference No.1 of 2016, heard on 19th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302, 109, 34, 309 & 310---Waiver/compounding of Qisas in Qatl-i-amd---Accused, during appeal against conviction, filed application seeking permission to effect compromise with legal heirs of the deceased---Father for himself and on behalf of minor legal heirs, husband of the deceased, effected the compromise, after receiving Diyat in the shape of agricultural land---Sessions Judge reported that the compromise had been effected voluntarily and without fear or duress---State counsel also verified the compromise to be genuine---Compromise effected between the parties was voluntary, genuine, without duress, threat or coercion---High Court, with the view of promoting peace and harmony between the families as well as in the society, granted the permission to compound the offence of qatl-i-amd---Appeal against conviction was allowed accordingly.

Danyal Ijaz for Appellant.

Rana Muhammad Shafique, DDPP for the State.

Date of hearing: 19th February, 2016.

2016 P Cr. L J 1102

[Lahore]

Before Muhammad Anwaarul Haq, J

MUHAMMAD ZULFIQAR ALI---Petitioner

Versus

SHO POLICE STATION GHULAM MUHAMMAD ABAD FAISALABAD and 2 others---Respondents

Writ Petition No. 31122 of 2012, decided on 22nd January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B----Penal Code (XLV of 1860), S. 489-F---Specific Relief Act (I of 1877), S. 39---Registration of FIR---Ex-officio Justice of Peace directed the police to register case on basis of dishonored cheque against the accused---Civil court, while decreeing the suit for cancellation of the cheque, had already declared the cheque having been issued without consideration, and said decree, having not been challenged, still held the field---No further action was required, in circumstances---High Court set aside the impugned order regarding registration of FIR--- Constitutional petition was allowed in circumstances.

Muhammad Ajmal Adil for Petitioner.

Naveed Saeed Khan, Additional Advocate-General with Naseer S.I. Police Station Ghulam Muhammad Abad, District Faisalabad.

Nemo for Respondent No.2.

2016 P Cr. L J 1108

[Lahore]

Before Mehmood Maqbool Bajwa and Hafiz Shahid Nadeem Kahloon, JJ

ASGHAR ALI MUBARAK---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, RAWALPINDI and 5 others- -Respondents

W. P. No. 823 of 2015, decided on 2nd June, 2015.

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

----Ss. 2, 6 (c), 7 & 12---Penal Code (XLV of 1860), Ss. 302 & 324---Religious and sectarian cause---Jurisdiction of Trial Court---Case of qatl-i-amd and attempt to commit qatl-i-amd was registered against accused and case was sent to Anti-Terrorism Court for trial but transferee Court returned the same on the ground that Court of ordinary jurisdiction could not send the case to it for trial---Validity---Provision of S. 6(c) of Anti-Terrorism Act, 1997, was an independent provision also defining terrorism---After cl. (b) in S. 6 of Anti-Terrorism Act, 1997, word "or" was used clearly suggesting that any action mentioned in cl. (c) would also be an act of terrorism and in order to apply cl. (c), conditions mentioned in S. 76(b) of Anti-Terrorism Act, 1997, were not required to be attracted---In order to attract S. 6 of Anti-Terrorism Act, 1997, allegations contained in crime report and statements of witnesses recorded under S. 161, Cr.P.C. to be examined---According to accusation contained in FIR lodged by complainant, he along with his brothers, deceased and sisters was coming back to his home after attending "Majlis-e-Aza" when unidentified assailants started firing causing injuries to deceased who died ultimately---Prima facie there was an action within the meaning of S. 6(c) of Anti-Terrorism Act, 1997, for the purposes of advancing religious and sectarian cause---High Court directed prosecution branch to submit report under S. 173, Cr.P.C. to court of competent jurisdiction--- Petition was allowed in circumstances.

Muhammad Ilyas Siddiqi for Petitioner.

Sardar Muhammad Hafeez Khan and Ikram Ullah Khan Niazi for Respondents Nos.4 to 6.

Muhammad Usman and Waqas Anwar, Deputy Prosecutors General, Punjab along with Asif Ali, S.I.

2016 P Cr. L J 1134

[Lahore]

Before Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

GHULAM NABI---Appellant

Versus

MUHAMMAD IRFAN and 2 others---Respondents

Criminal Appeal No. 2043 of 2004, heard on 29th April, 2015.

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

----Ss. 302 & 109--- Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd and abetment---Appeal against acquittal---Appraisal of evidence---No eye-witness of occurrence---Non-disclosing of source of information by the complainant---Chance witness---No direct evidence---Extra judicial confession---Evidentiary value---Complainant had not disclosed his source of information nor he disclosed name of the witnesses who informed him with regard to the names of the accused---Prosecution witnesses being chance witnesses had not been able to explain their presence at the spot---Persons who committed the murder after taking all precautions to keep secrecy were not likely to confess their guilt after committing the offence---No direct evidence was available against the accused except the statement of the witnesses of extra judicial confession in whose presence accused had confessed their guilt---Evidentiary value of extra judicial confession would depend upon the veracity of the witnesses to whom it was made---Court was to decide with regard to credibility and acceptability of such evidence---Report of Chemical Examiner was doubtful---Charge against the accused had not been proved---Prosecution had failed to establish its case beyond shadow of reasonable doubt---Appeal was dismissed in circumstances.

(b) Criminal trial---

----Extra judicial confession---Evidentiary value---Scope---Evidentiary value of extra judicial confession would depend upon the veracity of the witnesses to whom it was made.

(c) Criminal trial---

----Accused should be presumed to be innocent till proved guilty.

Nemo for Appellant.

Rai Sala-ud-Din Kharal for Respondents.

Muhammad Naseem Akhtar, DDPP for the State.

Date of hearing: 29th April, 2015.

2016 P Cr. L J 1147

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmed, JJ

FIDA HUSSAIN---Petitioner

Versus

The STATE and 3 others---Respondents

W.P. No. 10557 of 2015, decided on 21st September, 2015.

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

----Ss. 302, 309, 324, 394, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl-i-amd, attempt to commit qatl-i-amd, voluntary causing hurt in committing robbery, abetment and common intention---Waiver of qisas in qatl-i-amd---Application for waiver of qisas on basis of partial compromise, refusal of---Competence and number of witnesses--- Requirement--- Qatl-i-amd liable to qisas, proof of---Petitioner, being one of the walis of deceased, filed application seeking suspension of execution of death sentence of accused for his having waived his right of qisas, which was dismissed by trial court---Contention raised by accused was that as trial court had omitted to mention clause (b) of S. 302 of P.P.C., thus accused was to be deemed to have been convicted under S. 302(a) of P.P.C., which would make partial compromise possible by payment of share of diyat to other walis, who were not party to compromise, in lieu of death sentence as qisas---Validity---Only punishment provided under S.302(a), P.P.C. was death, and qisas could only be exacted if voluntary and true confession or evidence within contemplation of Art. 17 of Qanun-e-Shahadat, 1984 was available---Conviction was not based upon confession, and purgation of witnesses had not been carried out so as to suggest infliction of death penalty as qisas---Despite inadvertent omission to specify clause (b) of S. 302, P.P.C., penalty of death, for all intents and purposes, had been inflicted thereunder---Accused had prayed for alteration of death penalty into life imprisonment before Supreme Court---No alternate penalty was available under S. 302(a), P.P.C.---Solitary favour of one of walis could not rescue accused---Constitutional petition was dismissed accordingly.

Zahid Rehman v. The State PLD 2015 SC 77 rel.

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

----Ss. 309 & 302(a)---Waiver of qisas in qatl-i-amd---Principles---Partial compromise, permissibility of---Solitary favour of one of walis cannot rescue accused.

Zahid Rehman v. The State PLD 2015 SC 77 rel.

Allah Bakhsh Kalachi for Petitioner.

Mehr Nazar Abbas Chawan, AAG for the State.

Atta-ul-Manan for Respondents.

2016 P Cr. L J 1161

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

MIRAJ KHALID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 79-J of 2008, heard on 5th November, 2015.

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

----S. 9(c)--- Recovery of narcotics--- Appreciation of evidence---Amalgamated samples---Charas weighing 135 kilograms and opium weighing 10 kilograms were recovered from accused which was packed in shape of packets weighing 1 kilogram each---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---No separate samples taken from each packet recovered from accused were sent for chemical analysis rather only one parcel of 1350 grams Charas and 1 parcel of 100 grams opium in amalgamated form were prepared---Chemical Examiner's Report regarding Charas and opium, showed that one consolidated sample of Charas and one consolidated sample of opium was tested---Only one packet of Charas weighing 1350 grams out of 135 packets and one packet of opium weighing 100 grams out of 10 packets could be considered against accused---Imprisonment for 4 years 6 months upon recovery of Charas exceeding 1 kilograms upto to 2 kilograms and fine of Rs. 20,000 while simple imprisonment for 1 year and 8 months upon recovery of opium upto 1000 grams and fine of Rs.7000 was reflected in the Schedule provided in Ghulam Murtaza's case PLD 2009 Lah. 362---High Court took the lenient view and reduced the imprisonment for life to already undergone by accused---Appeal was dismissed accordingly.

Ameer Zeb's case PLD 2012 SC 380; Mst. Nasreen Bibi v. The State 2014 SCMR 1603 and Fareed Ullah v. The State 2013 SCMR 302 rel.

Ghulam Murtaza's case PLD 2009 Lah. 362 fol.

Barrister Sehr Khosa, (Defence counsel) for Appellant.

Muhammad Atif Rao, DDPP for the State.

Date of hearing: 5th November, 2015.

2016 P Cr. L J 1170

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

Haji ZAFAR ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1410 of 2012 and 213 of 2014, heard on 23rd November, 2015.

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

----Ss. 9(c), 8, 7, 5 & 36--- Control of Narcotic Substances (Government Analysis) Rules (2001), R. 6---Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs---Appreciation of evidence---Report of result of test or analysis---Scope---Prosecution evidence came up with material contradictions, which had created strong doubt in the veracity of the prosecution case---Eye-witnesses of the place of occurrence had given different versions---Prosecution witnesses had stated the colour of the recovered Charas to be blackish; whereas, the report of Chemical Examiner showed that the colour was greenish---Said contradiction as to the colour of the recovered substance was damaging to the prosecution case---Statement of prosecution witnesses and report of Chemical Examiner were also contradictory as to number of parcels of Charas and opium sent to the Chemical Examiner and as to manner and time of their transmission to the Chemical Examiner---Report of Chemical Examiner could not be said to be full and complete, disclosing the full protocols of the test applied, except the bare opinion that the packets contained Charas---In terms of R. 6 of Control of Narcotic Substances (Government Analysis) Rules, 2001, report of the Chemical Examiner containing his opinion must have disclosed the procedure and the reasons on which his opinion was based---Opinion rendered by the Chemical Examiner was no evidence, unless the same was supported with reasons---Said patent infirmity noticed in the report was fatal to the prosecution case---High Court, setting aside the conviction and sentence, acquitted the accused--- Appeal was allowed accordingly.

Ikram Ullah and others v. The State 2015 SCMR 1002 rel.

Muhammad Usman Sharif Khosa for Appellant.

Sahibzada Anwar Hameed, Senior Special Prosecutor for ANF for the State.

Date of hearing: 23rd November, 2015.

2016 P Cr. L J 1189

[Lahore]

Before Mehmood Maqbool Bajwa and Erum Sajad Gull, JJ

STATE (NAB)----Petitioner

Versus

MUHAMMAD ASLAM BAJWA and others----Respondents

Criminal Miscellaneous No.2048-M of 2012, decided on 14th October, 2015.

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

----S. 32---Limitation Act (IX of 1908), Ss.5 & 29(2)---Appeal---Limitation---Condonation of delay---Applicability of S.5 of Limitation Act, 1908 when limitation had been provided in a special law---Scope---Specific period of limitation for filing an appeal had been provided under S.32 of National Accountability Ordinance, 1999---Provisions of S.5 of Limitation Act, 1908 could not be invoked for condonation of delay in preferring appeal under special or local law in view of bar contained in S.29 of Limitation Act, 1908, unless and until through enabling and permissive provision of law in the said special or local law same had been made applicable---Appeal being barred by time was dismissed in limine.

Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; City District Government. Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582; Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi PLD 1999 Kar. 76; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Shera v. Agricultural Development Bank of Pakistan 2004 CLD 924; Islamic Republic of Pakistan through Secretary, Ministry of Defence v. Messrs Masood Enterprises through Managing Director 2001 YLR 327; Abdul Aziz v. Mst. Inayat Bibi through Legal Heirs and others 2002 YLR 1069; Chairman, Federal Board of Intermediate and Secondary Education, Islamabad through Deputy Secretary Legal v. Umar Saeed Sadal 2003 CLC 1447; Messrs Mushtaq & Co. through Managing Partner and 3 others v. Messrs National Bank of Pakistan 2004 CLD 1573; Sikandar Hayat v. Agricultural Development Bank of Pakistan through Manager 2005 CLD 870; Shahzad Hassan Bhatti and 6 others v. Platinum Commercial Bank Limited through Branch Manager and 2 others 2005 CLD 912; Chaudhry Muhammad Aslam v. SME Bank Limited through Chairman/President and 2 others 2006 CLD 1301; Mst. Shamim Tahira and others v. Zarai Taraqiyati Bank of Pakistan Ltd. through Manager and another 2007 CLD 778; Dilbad Shah v. S. Rehmat Shah and others PLD 2007 Pesh. 103; Pakistan Telecommunication Mobile Ltd. v. Furqaan Hayat Khan and others 2008 CLC 628; Allah Bakhsh v. Allah Bakhsh 2010 CLC 951; Messrs Pehlwan Marble Factory through Muhammad Asif v. The State and another 2011 PCr.LJ 200; Allied Bank Limited through Tariq Mehmood Sheikh SAM and Mujtaba Gillani AVP-SAM Branch authorized Attorney v. Messrs Shahabad Textiles (Pvt.) Ltd. through Chief Executive and Director 2012 CLC 1326; Din Muhammad v. Khan Bad Shah and another 2012 MLD 1006; General Manager v. Mst. Sakina Bibi and others 2012 CLD 1112; Messrs Khan Tractors, Alipur Road, Khan Garh District Muzaffargarh through Proprietor and 2 others v. Habib Bank Limited, Railway Road Branch, Muzaffargarh through Manager 2013 CLD 177; WAPDA through Chairman WAPDA and 3 others v. Bhajan Das Tejwani 2014 MLD 1765 and Messrs Pervaiz & Co. through Proprietor and others v. National Bank of Pakistan through Attorney 2015 CLD 972 rel.

(b) Administration of justice---

----Question of limitation could not be considered as a technicality.

Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCR 8 rel.

Arif Mehmood Rana, Addl. Deputy Prosecutor General for National Accountability Bureau.

2016 P Cr. L J 1198

[Lahore (Multan Bench)]

Before Muhammad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ASHRAF and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 779 of 2009 and Murder Reference No. 181 of 2009, decided on 15th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 34 & 337-A(i)---Qatl-i-amd, common intention, causing Shajjah-i-Khafifah--- Appreciation of evidence---Sentence, reduction in---Role ascribed to both accused persons, were almost corroborated by medical evidence---Injuries on the person of the complainant, though trivial in nature, had not seriously been challenged by the defence---Chhuris allegedly recovered at the instance of accused persons, though were found stained with blood, but there was no report of Serologist on the file to determine the origin of the blood---Motive for the occurrence existed---Evidence of complainant and prosecution witness, could not be accepted as a whole truth merely because, they were in concurrence with each other on the details of the occurrence; and that medical evidence was in line with their narrations---In absence of Serologist report, prosecution had not been able to prove that occurrence took place at the spot wherefrom blood stained earth was taken---Blood stained 'chhuris' allegedly recovered at the instance of accused persons were not got tested---Statements of accused persons made under S.342, Cr.P.C., could not be made basis to draw any adverse inference against them, as those were to be accepted in totality without slicing them favourably or otherwise---Involvement of co-accused in the case being not free from doubt, it would be unsafe to maintain impugned judgment of the Trial Court to his extent---Appeal to the extent of co-accused was allowed, and he was acquitted from the charges on all counts, and was released---Conviction of accused, was maintained, but on the question of sentence, prosecution had withheld real circumstances leading to the incident, inconsequential nature of recovery of 'chhuris', transposition of motive alleged in the complaint, and deceased's own conduct, had made out a case of lesser penalty of imprisonment for life, which would meet the ends of justice---Penalty of death awarded to accused was converted into imprisonment for life; and his conviction and sentence under S.337-A(ii), P.P.C., was maintained, in circumstances.

Syed Muhammad Asad Abbas for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

Date of hearing: 15th December, 2014.

2016 P Cr. L J 1210

[Lahore]

Before Erum Sajad Gull, J

GU LONGBIN---Petitioner

Versus

The STATE and others---Respondents

W.P. No. 29904 and C.M. No. 7542 of 2015, decided on 17th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of donkey hides---Authorities took into possession hides of donkeys which were stolen from different places---Petitioner was a foreigner (Chinese) who claimed custody of hides in question on the ground that he was the owner of donkey hides---Ordinarily, under S. 516-A, Cr.P.C., custody of case property was handed over to the person who was last in possession of said property---Provision of S. 516-A, Cr.P.C., was applied only when an offence was committed in respect of any property or the said property was used for the commission of any offence---Case property was to be produced before Trial Court when required during the trial and if a perishable item it was sold or ordered to be disposed of by Court---Petitioner was unable to prove that he was owner of donkey hides or donkey hides were last in his possession when police confiscated the same as case property---High Court declined to hand over case property to petitioner just because he was a foreigner---Respondents were nominated in FIR as accused for stealing donkeys and stolen property could not be given on superdari to a person who purchased the same from a thief---FIR for stolen donkeys was registered and trial was under progress---High Court observed that government should sell donkey hides and hand over the money to donkey owners whose donkeys were stolen after the owners were ascertained on conclusion of trial, till then money could be deposited with Trial Court---Constitutional Petition was dismissed under circumstances.

Shahzib Masud, Mian Ali Ashfaq and Mian Izhar Ahmad Joiya for Petitioner.

Syed Nayyar Abbas Rizvi, Additional Advocate General along with Rana Kamran and Adnan Tariq, Assistant Advocates-General.

Miss Ummul Baneen, Deputy District Public Prosecutor.

Applicants in person (in C.M. No. 7542 of 2015).

Ch. Shoaib Saleem for Applicants (in C.M. No. 7542 of 2015).

2016 P Cr. L J 1216

[Lahore]

Before Erum Sajad Gull, J

BASIT NADEEM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No. 5568 of 2014, decided on 8th February, 2016.

Punjab Anti-Corruption Establishment Rules, 1985---

----Rr. 6, 7 & 8---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Order passed by Justice of Peace to register case---Non-compliance of---Inquiry, conduct of---Object and scope---Petitioner sought direction of High Court for registration of case against proposed accused as no FIR was registered on the order passed by Ex-Officio Justice of Peace---Validity---When a public servant was alleged to have committed a scheduled offence jointly with other private persons, then a criminal case against them could be registered only under the orders of officers mentioned in R. 8 of Punjab Anti-Corruption Establishment Rules, 1985---Before registration of case, Anti-corruption Department had a right to first make a thorough inquiry as prescribed in Punjab Anti-Corruption Establishment Rules, 1985---Wisdom behind such inquiry was that public servants should be given some protection from false and frivolous cases registered against them---Constitutional Petition was dismissed in circumstances.

Saleem Ullah Khan v. The State 2008 SCMR 1465 rel.

Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others 1992 MLD 311; Muhammad Hafeez and 2 others v. The State and another 1999 MLD 1174; Riaz Ahmad Tahir v. State and others PLJ 1996 Cr.C. (Lah.) 80 and Mehboob Ali v. The State and 3 others PLD 1996 Lahore 454 ref.

Ch. Aish Muhammad Khan Sra for Petitioner.

Rana Kamran, Assistant Advocate-General with Muhammad Shoaib, ASI, ACE for Respondents.

2016 P Cr. L J 1226

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mrs. HUMAIRA KHURRAM KHAN----Petitioner

Versus

SECRETARY MINISTRY OF INTERIOR and 3 others----Respondents

Writ Petition No.31218 of 2013, decided on 30th December, 2013.

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

----S. 2---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Exit Control List---Removal of name---Alternate remedy---Criminal case, pendency of---Petitioner was government official alleged to have embezzled huge amount from public funds and was facing criminal investigation---Petitioner sought removal of her name from Exit Control List on the plea that she had to attend marriage ceremony of her daughter in Canada---Validity---Grounds for placing name of petitioner on Exit Control List were not communicated to her---If there was any flaw in the action, no prejudice was shown to have been caused to petitioner because she had a right of filing review petition before competent authority---Without availing remedy of review, Constitutional petition before High Court was not maintainable---High Court declined to issue direction for removal of name of petitioner from Exit Control List during pendency of criminal case involving embezzlement of huge public exchequer---Petitioner was required for investigation and recovery purposes, as she was enlarged on ad-interim pre-arrest bail---Petitioner failed to make out any valid ground involving urgency of emergent nature to remove her name from Exit Control List---Authorities placed name of petitioner on Exit Control List after following proper procedure and it could not be declared to have been issued without jurisdiction or any authority---Petition was dismissed in circumstances.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Shariq Imran Khan v. Federation of Pakistan and others 2003 YLR 3104 distinguished.

Ahmad Awais for Petitioner.

Mohammad Sohail, Standing Counsel with Fayyaz Muhammad XEN, PWD and Altaf Watto, FIA, ACC, Lahore for Respondents.

2016 P Cr. L J 1234

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

SHAHID MEHMOOD---Appellant

Versus

The STATE---Respondent

Cr. Appeal No. 821 of 2008, heard on 11th January, 2016.

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

----S. 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotic drugs etc.---Appreciation of evidence---Statement of prosecution/police witnesses were contradictory and falsified the prosecution version as to handing over the custody of the recovered Charas and accused, which created ground to believe that the case property had not been kept in safe condition---Constable, who had allegedly taken the sealed parcel of the case property and parcel of the sample from the place of occurrence to the police station, had not been examined by the prosecution---In absence of deposition of said person, who carried the sealed parcels, conviction could not be passed---Nothing was available on record to show that the case property had been produced before the trial court---Such production was necessary to corroborate the same with the report of the Chemical Examiner---Non-production created serious infirmity and doubt about the existence of the case property---High Court, setting aside the conviction, acquitted the accused---Appeal against conviction was allowed accordingly.

Zyed Zaeem Raza Kazmi Defence Counsel for Appellant.

Rana Abdul Majeed, Additional Prosecutor-General along with Tariq, ASI for the State.

Date of hearing: 11th January, 2016.

2016 P Cr. L J 1239

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7691-B of 2015, decided on 23rd July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498----Customs Act (IV of 1969), Ss. 156(1), (77), (81) & (82)---Bail before-arrest, grant of---Principles---Accused, as Incharge of warehouse, was alleged to have released goods consignment on basis of fake documents submitted by owner of goods---Accused was not named in FIR, and his name had been introduced through supplementary statement---Supplementary statement, prima facie, had no value in eye of law---Accused had neither prepared fake documents in question nor had same been submitted by him for release of smuggled goods---Accused had released goods after receiving letter from concerned authority---Accused had, therefore, released goods while adopting proper procedure---Investigating officer had failed to establish any proximity of accused with owner of goods to substantiate allegations leveled against him---Owner of goods had already deposited whole tax evasion amount in Government Treasury---Owner of goods had also sworn affidavit to the effect that he had handed over documents for their onward processing---Prosecution had not established that accused had released goods with prior knowledge that documents were fake---Principal accused, owner of goods, had already been released on post-arrest bail---Accused was not beneficiary of impugned tax evasion; rather he had only dealt with documentation in releasing goods---Prosecution had also not leveled any allegations on accused that he had released goods after receiving illegal gratification and conniving with owner of goods---Accused had been made scapegoat to save skin of his high-ups---Accused was government servant, and there was no chance of his abscondance---Accused was not expected to tamper with prosecution evidence---Accused was not previous convict, nor involved in any criminal case---Investigation of case was complete---Nothing was to be recovered from accused---Application for bail was allowed accordingly.

Muhammad Ajmal Adil for Petitioner with Petitioner in person.

Ch. Imtiaz Elahi, Special Prosecutor for Customs with Ch. Saeed, Intelligence Officer with record.

2016 P Cr. L J 1267

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

AHMAD NAWAZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 1765, Criminal Revision No. 1030 and Murder Reference No. 410 of 2010, heard on 14th October, 2015.

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

----Ss. 302 (b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention--- Appreciation of evidence---Court may presume certain facts---Power to examine accused---Delay in lodging of FIR, conduct of postmortem report and in sending the crime weapon to Laboratory not explained---Dishonest improvements made by the prosecution witnesses---False implication, plea of---Accused were alleged to have murdered the brother of the complainant by causing firearm injuries---Trial court convicted present accused and sentenced him to death along with payment of compensation---Absence of the FIR's description in the Inquest Report and the timing and date regarding receiving information of the incident lead to the conclusion that the FIR had been recorded not only with delay but also not at the alleged time---Complainant appeared to have not directly gone to the police station for lodging the FIR---FIR had been lodged after delay of two hours from the time of the incident and with delay of one hour and fifteen minutes from the time of death of the deceased without any explanation---Delay in lodging the FIR gave rise to the adverse inference that the delay had been utilized for false implication of the accused, concoction of the story and introduction of the false witnesses---Prosecution had failed to explain the delay in reporting the incident though the police station was only at a distance of eight miles---Said delay proved fatal to the prosecution case----Postmortem examination had been conducted with delay of ten hours and ten minutes, which had not been explained by the prosecution---Medical witness deposed that the postmortem had been conducted after receiving the police papers, but said reason had not been mentioned in the postmortem report---Eye-witnesses had stated that they had shifted the deceased in injured condition to the hospital, but according to the medical witness and the Medico-Legal Certificate, the deceased had been shifted to the hospital by some other persons---Conflict, therefore, existed between the medical evidence and ocular account---Medico Legal Certificate, as per the specific locale of the injuries mentioned therein, contradicted the stance of the eye-witnesses as to the positions of the accused and the deceased at time of the incident---During postmortem of the deceased, a wad and foreign metallic piece had been recovered from the path of the injuries but the same had neither been sent to the Forensic Science Laboratory for its comparison with the crime weapon recovered on pointation of the accused, nor the same had been exhibited in evidence, for which the adverse inference was to be drawn under Art. 129(g) of Qanun-e-Shahadat, 1984---Prosecution had made dishonest improvements in the prosecution story to bring the same in line with the report of the Forensic Science Laboratory---Conviction could be based on evidence, which was put to the accused during his statement under S. 342, Cr.P.C.; however, if any piece of evidence was not put to the accused in his statement, then the same could not be used against the accused---No question regarding the motive as set down in the FIR and making of the aerial firing by the accused had been put to the accused in his examination under S. 342, Cr.P.C.---When important incriminating circumstance was not put to the accused during his examination under S. 342, Cr.P.C., the prosecution could not place reliance on the said piece of evidence---Said piece of evidence, therefore, could not be used against the accused for convicting him---Both eyewitnesses were not only related inter se and to the deceased, but they were also chance witnesses---No special reasons existed for the eyewitnesses to be present at the place of occurrence at the time of the incident---Delay of one day in handing over of the recovered crime weapon for its safe custody was fatal and the chances of tampering with the prosecution evidence could not be ruled out---Recovery of crime weapon and the positive report of Forensic Science Laboratory were therefore of no avail to the prosecution--¬-Recovery of motorcycle used in the incident was of no consequence, as the eye-witnesses had not noted down the number of the motorcycle---Prosecution had failed to connect the motor cycle either with any of the accused or the offence---High Court, setting aside the conviction and sentence, acquitted the accused---Appeal was allowed accordingly.

Irshad Ahmed v. The Stat 2011 SCMR 1193; Allah Bachaya and another v. The State PLD 2008 SC 349; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Muhammad Tufail v. The State PLD 2002 SC 786; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Muhammad Rafique and other v. The State and others 2010 SCMR 385 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(b) Criminal trial---

----Medical evidence----Scope---Medical evidence can only indicate that the deceased had lost his life due to certain injuries but the same does not lead to the culprits.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

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

----S. 154----Information in cognizable cases---Principles---Prompt lodging of FIR is always insisted upon in respect of the occurrence along with information regarding names of actual accused, role played by them and mode and manner of the occurrence.

Barrister Usman Cheema for Appellant (in Criminal Appeal No.1765 of 2010).

Muhammad Ayyaz Butt for the Complainant/Petitioner (in Criminal Revision No.1030 of 2010)

Humayoun Aslam, Deputy Prosecutor General for the State.

Date of hearing: 14th October, 2015.

2016 P Cr. L J 1296

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD RAFIQUE alias FEEQA---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 821 of 2010, heard on 18th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 320 & 331---Causing death by rash and negligent driving---Diyat amount, recovery of---Instalments---Accused was convicted by Trial Court and sentenced to imprisonment for seven years for causing death of three persons by rash and negligent driving---Accused had served out his sentence and was behind the bars only for non-payment of Diyat amount because of financial restraints---Validity---Total amount of Diyat was Rs.33,08,040/- and High Court keeping in view the financial condition of petitioner directed him to pay the amount of Diyat to the legal heirs of concerned deceased persons in instalments within a period of five years at the rate of Rs.55,134/- per month without fail---High Court directed that instalments would be paid till 10th of every month and in case of default in payment of the same, accused was to be proceeded against under S. 331, P.P.C.---Revision was allowed in circumstances.

Barrister Danyal Ijaz Chadhar for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Date of hearing: 18th February, 2016.

2016 P Cr. L J 1319

[Lahore]

Before Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ

MUHAMMAD IRSHAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1758, 1916 and Murder Reference No.342 of 2009, heard on 8th February, 2016.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Occurrence took place at night and the same was reported to the police in the morning---Police witness deposed that the body was lying east-west with face downwards, which indicated that the body remained unattended at night---All the eye witnesses were close relatives of the deceased---Main grievance of the accused was against the complainant at the relevant time due to the civil and criminal litigation pending between them---Accused persons were allegedly armed with deadly weapons, but the eye-witnesses did not receive a scratch during the incident, nor had they informed the police---Conduct of the eyewitnesses, complainant and his sons was unnatural---Eye-witnesses did not make any effort to save life of the deceased---Ocular account of the incident was not in line with the medical evidence---Crime empties, as per Forensic Laboratory Report, had not been fired from the recovered rifle---Conviction could not be based on weak, unreliable and untrustworthy direct evidence even if the same had been corroborated by the supporting evidence---Eye witnesses had not only made improvements in their statements, but the same were also inconsistent---Trial court had acquitted the co-accused on the same set of evidence---Ocular account, being indivisible in nature, could not be made basis for conviction in absence of strong corroboratory evidence coming from independent source---Probative force of ocular account had to be seen in the light of facts and circumstances of each case---High Court acquitted the accused---Appeal against conviction was accepted accordingly.

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

----S. 302---- Qatl-i-amd--- Appreciation of evidence--- Principles---Ocular account in case of Qatl-i-amd, plays a decisive and vital role and once intrinsic worth of the same is accepted and believed, then, rest of the evidence, both circumstantial and corroboratory in nature, will be required as a matter of caution; however, on the contrary, once the ocular account is disbelieved, then, no other evidence even that of a high degree and value, will be sufficient for recording conviction regarding a capital charge.

Ijaz Ahmad Chadhar and Ch. Ahmad Masood Gujjar for Appellants.

Ashraf Ali Qureshi for the Complainant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

Date of hearing: 8th February, 2016.

2016 P Cr. L J 1343

[Lahore]

Before Mehmood Maqbool Bajwa and Mirza Viqas Rauf, JJ

GHULAM SARWAR KHAN LALWANI---Appellant

Versus

The STATE---Respondent

Cr. A. No. 1999 of 2002, decided on 11th November, 2014.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 14, 15 & 32---Corruption and corrupt practices---Appreciation of evidence---Benefit of doubt---Accused was served with charge of acquisition of immovable properties, disproportionate to his known sources of income and said properties were purchased by him but in the name of his wife, father and a close relative---Accused had committed offence of corruption and corrupt practices within the meaning of S.9(a)(iv) of National Accountability Ordinance, 1999---Charge of acquisition of immovable properties disproportionate to accused's known sources of income should have been framed under S.9(a)(v) of National Accountability Ordinance, 1999; and conviction should have been recorded accordingly---Such fact by itself, would not be sufficient to hold the judgment assailed as coram non judice as no prejudice had been caused to accused being well conscious of nature and extent of allegations, and evidence led by him---Even in the case falling under S.9(a)(v) of National Accountability Ordinance, 1999, in order to draw presumption under S. 14(c) of the Ordinance, the prosecution had to produce evidence to discharge initial onus---Price of all the three properties in question, was paid by accused in instalments within 7 to 11 years---None of prosecution witnesses, except Investigating Officer had stated about the known resources and expenditure of accused---Investigating Officer stated that value of properties acquired by accused was more than 10 million, whereas his known sources were salary and agricultural land, but did not give any detail of other income---Evidence suggesting value of properties in question and sources of income, would not advance the plea of prosecution to prove known resources of accused---Prosecution was obliged and required to collect and produce evidence regarding known resources of income of accused for the period during which properties, in question, were purchased and instalments were paid but no such evidence was collected---Trial Court formulated the view that evidence oral as well as documentary, adduced by accused was not worthy of credit---When prosecution failed to prove the charge by producing reasonable evidence to suggest disproportionate position, there was neither any occasion, nor justification to examine evidence led by accused---Prosecution was supposed to adduce evidence to establish culpability of accused---Mode of appreciation of evidence by the Trial Court was against the principles of criminal administration of justice---Purchase of the property, by itself was not an offence---Prosecution failed to produce evidence that accused purchased the properties from resources beyond his domain---In order to prove the nature of transaction as 'benami' prosecution was obliged to prove source of consideration, holder of title document, person in possession of property and intention and object of benami transaction---Evidence of prosecution witnesses just proved the ownership and possession of ostensible owners---When the prosecution had failed to prove its case against accused evidence which was sketchy or unworthy of credit was not required to be scanned, and by itself was not sufficient to record conviction---Prosecution having failed to prove its case against accused beyond shadow of doubt, while extending benefit of doubt, impugned judgment was set aside and accused was acquitted of the charge in circumstances and his surety stood discharged of respective bonds.

Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Farrukh Javed Ghuman v. The State PLD 2004 Lah. 155; Major (R) Nadir Ali v. The State PLD 2003 Quetta 77; Muhammad Hayat and 2 others v. State PLD 2002 Pesh. 118; Syed Qasim Shah v. The State 2009 SCMR 790; Muhammad Hasim Babar v. The State and another 2010 SCMR 1697; Khalid Aziz v. The State 2011 SCMR 136; H. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad AIR 1993 SC 313 and Hakim Ali Zardari v. State 2007 MLD 910 ref.

Muhammad Amjad Pervaiz for Appellant.

Ch. Nadir Manzoor Duggal, ADPG NAB for the State.

Date of hearing: 11th November, 2014.

2016 P Cr. L J 1365

[Lahore]

Before Erum Sajad Gull, J

GHULAM SHABBIR MALIK---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1472 of 2015, heard on 6th May, 2016.

Emigration Ordinance (XVIII of 1979)---

----Ss. 17 & 22---Unlawful emigration, receiving money for providing foreign employment---Appreciation of evidence---Allegation against accused was, that he defrauded brother of the complainant by portraying that accused would send brother of the complainant abroad for employment and after receiving Rupees four lac, neither sent brother of the complainant abroad, nor returned the money---Nothing was on record to prove that accused was an Overseas Employment Promoter, or he violated any provisions of the Emigration Ordinance, 1979 or Rules---No false documents relating to emigration, or any other instrument to be used for that purpose were recovered from accused, despite accused was on remand---Even no Passport was recovered from accused to establish the allegations levelled against him---Offences under Ss.17 & 22 of the Emigration Ordinance, 1979, were not made out, against accused---Alleged effectee, was never produced by the prosecution even alleged amount of Rs.4 lac, which allegedly was handed over to accused in presence of witnesses, was not established---Serious contradiction existed in the statements of the witnesses, as to who handed over the money to whom---Prosecution had failed to prove the case against accused beyond reasonable doubt---Conviction and sentences on such unreliable and disjointed evidence, could not be upheld---Conviction and sentence awarded to accused by the Trial Court, were set aside; accused was acquitted from the charges, in circumstances.

Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

Ijaz Ahmad Chadhar and Barrister Danyal Ijaz Chadhar for Appellant.

Mian Haseeb-ul-Hassan for the Complainant.

Syed Akmal Hussain Shah, Standing Counsel for the State.

Date of hearing: 6th May, 2016.

2016 P Cr. L J 1390

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

MUHAMMAD SADIQ alias HUSNAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 486-ATA, 520-ATA, 511-ATA, 521-ATA, 527-ATA, 542-ATA and C.S.R. No. 7 of 2014, heard on 20th January, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 427 & 109---Anti-Terrorism Act (XXVII of 1997), S.7---Explosive Substances Act (VI of 1908), Ss.3, 4 & 6---Criminal Procedure Code (V of 1898), Ss.164 & 364---Qanun-e-Shahadat (10 of 1984), Art.164---Qatl-i-amd, attempt to commit qatl-i-amd, mischief, abetment, act of terrorism, possessing and using explosive substance---Appreciation of evidence---Confession---Place and time of the explosion was not disputed---Judicial Magistrate, recorded confession of one of accused persons, in which accused gave detail as to how explosive material was dumped at a particular place before the same was brought at the place of explosion---All necessary steps required under S.364, Cr.P.C., were taken to ensure that accused was not induced by any one to make statement, nor was compelled to confess his guilt---Accused was also told that after making statement he, would not be handed over to the Police---One of co-accused was produced before media persons, and in Press Conference he made confession about his involvement in Bomb blast, which was converted into CD, which was handed over to SHO concerned, and was taken into possession by recovery memo---Said CD was also played before High Court; in which it was noted that said accused had clearly admitted that he was involved in the Bomb blast along with other accused---Evidence collected through modern devices (CD etc.) was admissible in evidence under Art.164 of Qanun-e-Shahadat, 1984, and same could be used against accused during judicial proceedings to determine the question of criminal liability---Charges against said two accused persons, were proved on record through reliable and admissible evidence---Conviction recorded and sentence awarded to said two accused persons by the Trial Court, were sustainable and there was no ground to interfere to their extent---Appeals of said two accused were dismissed---Case of remaining three co-accused, was distinguishable, as they neither confessed their guilt, nor there was any other cogent evidence brought on record by the prosecution to connect them with the alleged offence---Case of said three co-accused was almost identical to the case of acquitted accused persons---Prosecution had failed to prove charges against said co-accused persons---Appeal of those accused were allowed, they were acquitted of the charges, their conviction and sentences were set aside, and were ordered to be released, in circumstances.

Mehmood Khan Ghouri for Appellants.

Malik Riaz Ahmed Saghla, Deputy Prosecutor General for the State.

Malik Riaz Ahmed Saghla, Deputy Prosecutor General for Appellant (in Criminal Appeal No.542-ATA of 2014).

Date of hearing: 20th January, 2015.

2016 P Cr. L J 1407

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ

HABIB ULLAH---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 5 others---Respondents

Writ Petition No. 10877 of 2015, decided on 18th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 384 & 420---Extortion, cheating and dishonestly inducing delivery of property---Role ascribed to accused was that he was shown as a Army Official and behind his back, a huge amount was grabbed by co-accused for securing lease in their favour---After two years of the alleged occurrence a supplementary list of witnesses was introduced by the Investigating Officer in the reference, wherein only 5 to 6 persons, out of 102 had identified accused as a person, who was introduced as Army official, for grabbing the money from them by principal accused---Initially, accused was summoned as a witness by the Investigating Officer, but subsequently he was booked in the case by attributing role of abetment---Role of accused, was yet to be examined by the Trial Court, till that time accused could not be detained in the jail---Co-accused having already been admitted to bail, following the rule of consistency, accused was also entitled for the same relief.

Hamad Akbar Wallana for Petitioner.

Arif Mehmood Rana, ADPGA for NAB.

2016 P Cr. L J 1438

[Lahore (Multan Bench)]

Before Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ

QAISER ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal A. No. 928-J of 2011, 439 of 2010 and Murder Reference No. 115 of 2010, heard on 3rd December, 2015.

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

----Ss. 302, 396, 397 & 34---Qatl-i-amd, dacoity with murder, robbery or dacoity, with attempt to cause death or grievous hurt---Common intention---Appreciation of evidence---Benefit of doubt---Identification parade, would not advance the plea of prosecution in order to prove culpability of accused, as witnesses though had identified accused, but did not describe the role of said accused---Evidence of one of prosecution witnesses, would not advance the plea of prosecution to prove the guilt of accused, as said witness was not cited as a witness in the FIR---Complainant did not ascribe the role of accused---Occurrence took place at night, and case of prosecution was that assailants were unknown, who were seen by the witnesses in the headlights of the car, which halted at place of occurrence---Evidence led by the prosecution was totally silent regarding the duration of halting of said car at the place of occurrence---Direction of said car, which came there and halted, was also not known---Stance of the witnesses suggesting the particulars and description of the assailants in the headlights of the car, was nothing but a bald allegation---Since conscious and dishonest improvements were made by prosecution witnesses including the complainant, no implicit reliance could be placed upon their statements in order to prove culpability of accused persons---Ocular account furnished by the prosecution was contradictory which was not sufficient to prove the identity of accused persons as assailants---Recovery of weapon of offence from accused, and report of Forensic Science Laboratory, though positive in nature was doubtful---No shot was fired by accused from pistol allegedly recovered from him---Factum of recovery of weapons of offence from accused persons, would not be sufficient to provide corroboration in order to record conviction against accused persons---Recovery of certain articles from accused, would not be sufficient to provide corroboration in order to prove case against accused persons and to prove the charge under S.412, P.P.C., as no identification memo was prepared by the Investigating Officer with reference to said articles---Medical evidence by itself would not be sufficient to provide corroboration to ocular account in order to determine the identification of accused persons as assailant---Prosecution having failed to prove its case against accused persons beyond shadow of doubt, benefit of doubt, was granted as a matter of right--- Accused were acquitted from all heads of charges and sentence of death awarded to accused, was not confirmed---Accused being on bail, his surety stood discharged of their respective bonds; other accused was directed to be released, in circumstances.

Amanat Ali alias Amanti v. The State 2013 YLR 1959; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Mithal alias Babal and others v. State and others 2009 PCr.LJ 1288; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Shafqat Mehmood and others v. State 2011 SCMR 537; Falak Sher alias Sheru v. The State 1995 SCMR 1350; Akhtar Ali and others v. The State 2008 SCMR 6; Noor Muhammad v. The State 2008 SCMR 1556; Kaim and others v. The State PLD 1961 Kar. 728; Wahid Bakhsh and others v. The State 1969 PCr.LJ 1317; Lal Pasand v. The State PLD 1981 SC 142; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Khadim Hussain v. The State 1985 SCMR 721; Alim v. The State PLD 1967 SC 307; Ali Muhammad and another v. The State 1985 SCMR 1834; Arif Masih and another v. The State PLD 2001 SC 398; Muhammad Zaman v. The State 2007 SCMR 813; Solat Ali Khan v. The State 2002 SCMR 820; Lal Singh v. Crown ILR 51 Lahore 396; Asghar Ali @ Sabah and others v. The State and others 1992 SCMR 2088; Bacha Zeb v. The State 2010 SCMR 1189; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Kamran Khan and others v. State PLJ 2011 Cr.C (Lahore) 842; Sabir Ali @ Fauji v. The State 2011 SCMR 563; Mansoor Ahmad and others v. State and others 2012 YLR 2481; Sajjad Hussain v. the State 1997 SCMR 174; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Saifullah v. The State 1985 SCMR 410; Noor Muhammad v. The State and another 2010 SCMR 97; Riaz Ahmed v. The State 2010 SCMR 846; Vijant Kumar and 4 others v. State through Chief Ehtesab Commissioner, Islamabad and others PLD 2003 SC 56 and Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 ref.

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

----S. 302---Qatl-i-amd---Medical evidence---Scope---Medical evidence, could only be used in order to determine the seat and locale of injuries, as well weapon of offence used; and could not prove the identity of the assailants.

Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

Prince Rehan Iftikhar Sheikh for Appellants.

Mudassar Altaf Qureshi for Appellant (in Cr. A. No. 439 of 2010).

Ch. Zafar Iqbal Chadhar for the Complainant.

Abdul Qayyum, Additional Prosecutor-General for the State.

Date of hearing: 3rd December, 2015.

2016 P Cr. L J 1463

[Lahore]

Before Syed Iftikhar Hussain Shah and Sikandar Zulqarnain Saleem, JJ

NAWAZISH ALI and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No.211 of 2014, decided on 12th January, 2015.

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

----Ss. 6, 7 & 23---Application for transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction was dismissed---Validity---For determining the issue, whether the offence was triable under the Anti-Terrorism Act, 1997 or not, nature of offence had to be seen in the light of the averments as to how the same had been committed along with the particular place of incident; and further that by that act a sense of fear and insecurity in the society had been created in the minds of the people at large or not---Petitioners/accused persons, in the present case, armed with deadly weapon made criminal assault on the Police picket, causing murder of Sub-Inspector of Police and injuring passerby, thereby committed offence of "terrorism" triable by Anti-Terrorism Court---Place of incident was a Police picket, which was normally to be established so as to ensure safety and security to the people of the area---"Action" i.e. manner of the offence, involved in the matter, was an attack upon established Police picket---Such action would lead to an alarming situation and impression upon the people that if Police Officials, and Police posts were not safe, then what impact would be upon general public---Such would show the worst situation of lawlessness---Under such circumstances, not only vicinity of that area, but public at large, would have serious effect of insecurity, lawlessness and uncertainty in their routine life---Present case was not one of private vendatta, but action of accused persons reflected that it was a deliberate and intentional act---Prima facie, there was sufficient material on the file to suggest that accused had resorted to indiscriminate firing at the Police party---Act of petitioners fell within the purview of Ss.6 & 7 of Anti-Terrorism Act, 1997---Interference with or disruption of the duty of the public servants involved or coercion or intimidation of or violence against public servant, was "serious" enough to attract the definition of "terrorism"---Contention that alleged weapon used during the incident was .30 bore pistol, which was not an automatic weapon, whereas the provisions of Anti-Terrorism Act 1997, attracted only when the weapon used was Kalashnikov, or other allied automatic, weapon, was misconceived, as S.2(g) of the Anti-Terrorism Act, 1997 clearly denoted that "firearm" would mean any or all type and gauges of handguns, rifles and shotgun, whether automatic, semi-automatic or bolt action; and would include all other firearms as defined in Arms Ordinance, 1965---Well reasoned order, in absence of any error could not be interfered with--- Revision petition was dismissed, in circumstances.

Mati-u-Rehman v. Anti-Terrorism Court, Faisalabad 2008 MLD 840 ref.

Sh. Muhammad Suleman for Petitioners.

Muhammad Ikram Ullah Khan, Deputy Prosecutor-General with Hasnat, S.I. for the State.

Zafar Mehmood, brother of deceased in person.

2016 P Cr. L J 1475

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi, J

KAUSAR PARVEEN and another---Petitioners

Versus

SHO POLICE STATION CITY JALALPUR, PIR WALA, DISTRICT MULTAN and 2 others---Respondents

W. P. No. 13585 of 2014, decided on 16th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 375, 376, 380, 457, 493-A & 496-B---Criminal Procedure Code (V of 1898), S.561-A---Rape, theft in dwelling house, lurking house-trespass or house-breaking by night, cohabitation caused by a man deceitfully inducing a belief of lawful marriage, enticing or taking away or detaining with criminal intent a woman---Quashing of FIR---Respondent got registered a criminal case, with the allegation that petitioner being his legally wedded wife entered into a marriage with another person (also petitioner) which was a criminal offence---Theft of gold ornaments and some cash amount was also alleged in the FIR---Suit for dissolution of marriage, filed by petitioner on 9-7-2013 against the respondent, was decreed in ex parte proceedings on 6-9-2013; and on the very next day i.e. on 7-9-2013, petitioner entered into marriage with the said person (petitioner)---Earlier to the filing of suit for dissolution of marriage on 9-7-2013, petitioner preferred a suit for jactitation of marriage on 23-5-2013, which was withdrawn on 4-7-2013---Since 23-5-2013, the date of filing of the first suit for jactitation, she had no matrimonial contact with respondent---When on 7-9-2013, the petitioners entered into a marriage, period of "Iddat", if any, to be observed, stood already expired in favour of petitioner, in absence of any matrimonial link of petitioner with respondent---Marriage of the petitioners, even if was considered as "irregular marriage" on 7-9-2013, same had attained the status of "regular marriage" by efflux of time from the point, where 'Iddat' period was supposed to have expired---Criminal case registered through impugned FIR, had entirely been registered on wrong premises; and no criminality was established even prima facie; connecting the petitioners with alleged crime---High Court observed that if said FIR, was permitted to remain in the field, it would not only a wastage of precious time of the courts, but also the wastage of the precious time of Investigating Agency; and result in causing unjustified interference in the matrimonial life of the petitioners on the strength of a valid marriage---No further proceedings on the basis of such FIR, were allowed to be carried out by any forum or agency---FIR was quashed, in circumstances.

Muhammad Riaz and another v. The State 2011 SD 581; Shaukat Ali and another v. The State 2004 YLR 619; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Muhammad Sarwar and another v. The State PLD 1988 FSC 42 and Mst. Kundan Mai v. The State PLD 1988 FSC 89 ref.

Muhammad Ali Siddiqui for Petitioners.

M.R. Fakhar Baloch for Respondent No.2.

Muhammad Abdul Wadood, Deputy Prosecutor-General with Ghulam Sub-Inspector for the State.

Date of hearing: 11th December, 2014.

2016 P Cr. L J 1490

[Lahore]

Before Mazhar Iqbal Sidhu and Sardar Ahmad Naeem, JJ

HARIS AFZAL---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

W. P. No. 39508 of 2015, decided on 25th January, 2016.

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

----S.25-A---Voluntary Return (Plea bargain)---Payment of loans etc.---Bail granted on basis of Voluntary Return statement---Accountability Court allowed post arrest bail to the accused on basis of his statement pursuant to the Voluntary Return under S. 25-A of National Accountability Bureau Ordinance, 1999, which had been completed on application of the accused---Accused had accepted the details of his properties, both in and out of Pakistan---Accused although had discharged his liabilities regarding the properties existing in Pakistan, but he had disposed of the properties situated in United Arab Emirates through his attorney present there---Accused, therefore, had failed to fulfil his commitments made during the Voluntary Return transactions--- Properties mentioned in the report of National Accountability Bureau were yet to be disposed of for recovery of public money---Accused, willfully misusing the concession of bail, had remained absent for more than half decade---High Court maintained impugned order of the Accountability Court, whereby the bail granting order had been recalled and the accused was arrested---Constitutional petition was dismissed in circumstances.

Mrs. Asma Jahangir and Muhammad Asad Manzoor Butt for Petitioner.

Arif Mehmood Rana, ADPGA for the NAB.

Mustafa Ramdey and Jahanzeb Inam for Respondent No.4.

2016 P Cr. L J 1504

[Lahore (Rawalpindi Bench)]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

ANTI-NARCOTIC FORCE through Regional Director/Force Commander, Regional Directorate, ANF---Petitioner

Versus

RAZIA KAUSAR alias RANI and another---Respondents

Criminal Revision No. 279 of 2010, heard on 9th September, 2015.

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

----S. 439--- Revision--- Maintainability--- Limitation---No period of limitation had been prescribed under S. 439, Cr.P.C., nor any specific number of days, as in case of an appeal, had been fixed whereafter a revision would not formally be entertained---While no limitation had been prescribed for filing a criminal revision, the same had to be filed within reasonable time-limit which would depend upon the circumstances of each case---In the present case, revision petition was filed more than sixteen months after the pronouncement of judgment and about a year after complainant had obtained attested copy of the same---Complainant was the most relevant person to worry about the outcome of the case right from the beginning but he hardly showed any intent and had he been vigilant enough and on his toes, he would have come to know about its result well in time---Accused's release from the prison, in the present case, was a years old matter which showed that complainant took the matter too lightly and did not bother to challenge the accused's sentence within reasonable time---Delay caused was massive and filing of present revision petition had certainly gone past the boundaries of reasonableness, in terms of time-limit, hence, the same was not maintainable.

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

----S. 48(1)---Limitation Act (IX of 1908), S.3 & Sched.---Appeal---Limitation---Scope---Appeal under S. 48(1) of Control of Narcotic Substances Act, 1997 against judgment of conviction/sentence of Trial Court could be filed within a certain time-limit as envisaged by the First Schedule and S. 3 of Limitation Act, 1908---Limitation provided by the statute for filing an appeal against conviction, recorded by Trial Court, may be extended and delay caused, if any, be condoned under the relevant provisions of the Control of Narcotic Substances Act, 1997 provided the attending circumstances of the case warranted so---In the present case, time consumed by the petitioner in fetching attested copy of impugned judgment in filing the appeal spanned over a year, for which the appellant had no plausible explanation to offer---Delay caused was too massive and unreasonable to permit conversion of revision petition into appeal.

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

----S. 48(1)---Revision---Scope---Control of Narcotic Substances Act, 1997 did not provide any room for filing a revision petition against an order or judgment of the Trial Court---Section 48(1) of Control of Narcotic Substances Act, 1997 clearly and unambiguously contemplated an appeal to High Court against an order passed by Special Court comprising a Sessions Judge or an Additional Sessions Judge or a Special Court created under Control of Narcotic Substances Act, 1997 and right of appeal so conferred would cater to every kind of appeal from the very kind of order passed by Trial Court dealing with such cases---Complainant, in the present case, had no other alternative but to file an appeal under S. 48(1) of Control of Narcotic Substances Act, 1997 against order of Trial Court and that too within the period of limitation---Revision was dismissed, accordingly.

The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotic Force, Lahore v. Mst. Fazeelat Bibi PLD 2013 SC 361 rel.

Syed Intekhab Hussain, Special Prosecutor for ANF.

Ch. Mushtaq Hussain with Respondent No.2.

Respondent No.1 in person.

Date of hearing: 9th September, 2015.

2016 P Cr. L J 1519

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. RAZIA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 11349-B of 2015, decided on 11th September, 2015.

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

----Ss. 498 & 497--- "Pre-arrest bail"--- "Post arrest bail"---Distinction---Marked distinction existed between "pre-arrest bail" and "post arrest bail"; and considerations for both were on different footings---Scope of pre-arrest bail was wide.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 498---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Ad interim pre-arrest bail, confirmation of---Statements of prosecution witnesses, who had allegedly seen the accused along with her co-accused while throwing the dead body after strangulation, were recorded after the elapse of one month---Such-delay had reduced its value to nil---Extra judicial confession allegedly made by accused before the prosecution witnesses, being very weak type of evidence, its authenticity would be determined by the Trial Court after recording of prosecution evidence---Accused had a suckling baby of about eight months with her---Where a female accused had a suckling baby, welfare of the minor was preferred---No direct evidence was available against accused for participation in the commission of murder of the deceased---Ad interim pre-arrest bail, already granted to accused, was confirmed in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553 and Mst. Nusrat v. The State 1996 SCMR 973 rel.

Arshad Ali Chohan for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Zafar Iqbal Bhatti for the Complainant.

Fakhar ud Din, S.I. with record.

2016 P Cr. L J 1535

[Lahore]

Before Miss Aalia Neelum and Syed Shahbaz Ali Rizvi, JJ

ABDUL SATTAR alias SATTARI and 3 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.1207 of 2010 and Murder Reference No.434 of 2010, heard on 1st April, 2015.

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

----Ss. 302(b) & 149---Qatl-i-amd, common object---Appreciation of evidence---Prosecution had failed to prove that FIR was lodged at the given time immediately after the occurrence---Eye-witnesses had not witnessed the occurrence and the incident was reported to Police with consultation and deliberation---Incident did not take place as indicated by the prosecution---Complainant and prosecution witness, were closely related to the deceased and their presence at the time of occurrence was highly doubtful and testimony of the witnesses did not have the ring of truth---Witnesses had admitted their enmity with accused persons---Evidence of said witnesses was replete with discrepancies, contradictions and improbable versions, which had rendered prosecution case doubtful---Version of incident as put forward by said witnesses, was in conflict with the medical evidence---No independent piece of evidence was available to corroborate the evidence of the interested witnesses---Empties recovered from the spot, were not sent along with the weapons allegedly recovered from accused persons---Reports of Forensic Science Laboratory were only to the effect that the weapons were allegedly recovered from accused persons, were in working condition---Such recoveries of the weapons were of no consequence---Prosecution had motive to involve accused persons in the occurrence---Different story was structured, perhaps to lug accused persons into trial under the serious offence--- Prosecution having failed to prove the guilt of accused persons beyond reasonable doubt, judgment of the Trial Court, was set aside; accused persons were acquitted of the charge, and were released, in circumstances.

(b) Criminal trial---

----Evidence of close relatives---Credibility of---Chance witness---Scope---Relationship was not a factor to affect the credibility of witnesses---Ocular account though could have been given by close relatives or family members it would not by itself lost its evidentiary value, unless some other factor was brought on record to discredit their creditworthiness---Court, in such case, had to adopt a careful approach and analyze evidence to find out, whether it was cogent and reliable---Duty was cast upon the court to examine their testimonies with due caution and care---Chance witness must adequately explain his presence at the place of occurrence.

(c) Criminal trial---

----Motive---Motive was a double edged weapon, which would cut either side.

(d) Criminal trial---

----Benefit of doubt---Benefit of every doubt, was to be extended to accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Shahzad Saleem Warraich for Appellants.

Ch. Masood Ahmad Zafar for the Complainant.

Humayoun Aslam, Deputy Prosecutor-General for the State.

Date of hearing: 1st April, 2015.

2016 P Cr. L J 1566

[Lahore]

Before Erum Sajad Gull, J

LIAQUAT ALI---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Petition No.2112-M of 2016, decided on 2nd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 167--- Physical remand/police custody on application of complainant/private person after judicial remand---Permissibility---Magistrate had sent the accused to the judicial lockup, as he was no more required for physical remand by the police---District Public Prosecutor, nor any other representative of the State, had raised any objection, while the accused was being sent to the judicial lockup---State had also not assailed the order of judicial remand, and the complainant alone had impugned the same in his private capacity---Section 167, Cr.P.C. was clear on the point that any person in his private capacity could not have applied for the police custody of the accused---Impugned order of physical remand was set aside accordingly.

Bahadur and another v. The State and another PLD 1985 SC 62; Malik Hakim Khan v. The State and others 2016 PCr.LJ 402 and Abdul Hassan v. The State and others 1969 SCMR 215 rel.

Muhammad Ajmal Adil for Petitioner.

Iftikhar ul Haq Chaudhary, Additional Prosecutor-General for the State.

Nemo for Respondent No.4.

2016 P Cr. L J 1578

[Lahore]

Before Muhammad Yawar Ali, J

MUHAMMAD SHAKEEL KHAN---Petitioner

Versus

ALI RAZA and others---Respondents

Criminal Misc. No. 3844-CB of 2015, decided on 5th October, 2015.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting being armed with deadly weapons and common object---Bail, cancellation of---Accused was alleged to have caused two fire arm injuries on body of deceased, which resulted in his death---Alleged occurrence happened during dead of night---Complainant had seen occurrence taking place clearly---Cause of death suggested by final post-mortem examination report had supported complainant's version as to injuries caused by accused---Alleged injuries were sufficient to cause death in ordinary course of nature---Port-mortem examination report lent credence to prosecution case---Trial Court, while granting bail to accused lost sight of fact that all accused persons had been nominated in promptly lodged FIR, and specific role had been ascribed to each of them---Two fire injuries, which had contributed towards death of deceased, were attributed to accused and to none else---No plausible explanation could be provided as to why complainant would leave real culprits and, in their place, implicate present accused with commission of offence immediately after offence had been committed---Accused had been charged with offence which not only fell within prohibitory clause of S. 497(5) of Cr.P.C. but also attracted capital punishment---No cogent material was available on record to make present case one of further inquiry into guilt of accused---Post-arrest bail, earlier allowed to accused, was cancelled---Application for cancellation of bail was allowed accordingly.

Malik Javaid Iqbal v. The State and others PLD 2015 SC 250 rel.

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

----S. 497(5)---Bail, cancellation of---Principles---High Court, in normal circumstances, would not cancel bail earlier allowed to accused, but where bail granting order is perverse, patently illegal and passed in violation of settled principles as to grant of bail, High Court would not hesitate in interfering and cancelling bail.

The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa 2010 SCMR 580 rel.

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

----S. 154---Information in cognizable offences---Scope---Sanctity is attached to FIR, particularly, when same is lodged promptly.

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

----S. 173---Report of police officer---Scope---Ipse dixit of police officials is not binding on court.

Faisal Ghafoor Khokhar for Petitioner.

Sarfraz Ahmad Khattana, Deputy District Public Prosecutor with Aftab, S.I.

Aftab Hussain Bhatti for Respondent No.1.

2016 P Cr. L J 1602

[Lahore]

Before Shahid Hameed Dar, J

MUSTAFA alias ARSHAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 4524-B of 2015, decided on 23rd June, 2015.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395 & 412---Dacoity, dishonestly receiving stolen property in commission of dacoity---Bail, grant of---Further inquiry---Co-accused implicated on basis of extra-judicial confession---Accused were alleged to have committed dacoity at house of complainant---Mere heinousness of crime was not sufficient while dealing with question as to grant of bail---No identification parade had been conducted to identify accused during investigation---Statement of complainant under S. 161, Cr.P.C. had been recorded after one year of alleged occurrence---Statement of accused, whereby they had implicated seven other accused alleging them all to have made joint confessional statement before them, was not plausible, as no details as to when and where said accused had admitted their guilt had been provided---Extra-judicial confession was weak type of evidence which might be manoeuvred by prosecution in a case where direct connecting evidence could not be produced---Investigating Officer, having recovered pistol and cash, had not prepared memo. of recovery---Accused had been behind bars for more than one year and was no more required by police---Sufficient reasons existed to believe that further inquiry was required into guilt of accused--- Bail application was accepted accordingly.

(b) Criminal trial---

----Extra-judicial confession--- Evidentiary value--- Extra-judicial confession is weak type of evidence which may be manoeuvred by prosecution in a case where direct connecting evidence cannot be produced.

Malik Muhammad Riaz for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab with Umer Daraz, ASI for the State.

Mushtaq Ahmad Khan Bhutta for the Complainant.

2016 P Cr. L J 1621

[Lahore (Multan Bench)]

Before Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ

FAIZ MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 625-J of 2010 and Murder Reference No. 111 of 2010, heard on 4th December, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Sentence, reduction in---Credibility of the complainant and prosecution witnesses, with reference to mode and manner of occurrence was not shaken in cross-examination--- Deposition of said witnesses inspired confidence---No discrepancy, could be pointed out by adversary in the statements of both the witnesses disclosing the manner of occurrence---Complainant and eye-witness, though were father and brother of the deceased, but their such relationship, by itself would not be sufficient to stamp them as 'interested witnesses', as nothing was on record to suggest "animosity" against them; and they had no motive to speak against accused with malice---Ocular account furnished by prosecution to prove the culpability of accused, inspired confidence; and their reliability, was beyond doubt---Post-mortem report, disclosing the same seat of injuries, furnished further corroboration to the ocular account---Medical evidence, corroborated ocular account---Factum of recovery of .30 bore pistol stood established--- Crime-empties and pistol recovered, sent to Forensic Science Laboratory for comparison; and report of Laboratory, was positive---Prosecution failed to prove motive---Positive and confidence inspiring ocular evidence, finding support from other aspects, despite failure to prove motive, would be sufficient to hold reliability of prosecution version---Accused who alleged that, the deceased, used to cut indecent jokes with his wife, did not give the detail of such jokes---Conviction of accused under S.302(b), P.P.C., was maintained, but as the prosecution had failed to prove motive, that would be considered as mitigating circumstance---Sentence of death awarded to accused, was converted into life imprisonment---Benefit of S.382-B, Cr.P.C., was also extended to accused.

Ashiq Hussain alias Muhammad Ashraf v. State PLD 1994 SC 879; Muhammad Saleem v. The State PLD 2002 SC 558; Muhammad Yousaf and others v. The State and others PLD 2007 SC 266 and Muhammad Nasrullah v. The State 2003 SCMR 189 ref.

Muhammad Ishaque Khan and others v. The State and others PLD 1994 SC 259; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Muhammad Ashraf v. The State 1998 SCMR 1764; Muhammad Yaqoob alias Qooba v. The State 1999 SCMR 1138; Feroze Khan v. The State 2002 SCMR 99; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Yaseen and others v. Muhammad Shafique and others 1997 SCMR 1527; Noor Muhammad v. The State and another 2010 SCMR 97; Zulfiqar Hussain and another v. The State 2011 SCMR 379 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Muhammad Usman Sharif Khosa for Appellant.

Sh. Jamshed Hayat for the Complainant.

Abdul Qayyum, Additional Prosecutor-General for the State.

Date of hearing: 4th December, 2015.

2016 P Cr. L J 1645

[Lahore]

Before Erum Sajad Gull, J

MAZHAR HUSSAIN and others---Appellants

Versus

The STATE and others---Respondent

Criminal Appeal No.134-J of 2013, heard on 12th February, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt--- Unseen occurrence---No substantial evidence was available on record to prove motive---Non-production of an important witness of the occurrence by the prosecution, would create an impression that if said witness had appeared in the court, he would not have supported the prosecution version---Wajtakkar witness being a chance witness, evidence of such witness was always accepted with great caution---Statements of prosecution witnesses, were not confidence inspiring---Alleged recoveries effected from accused persons, had no evidentiary value; and were not enough to uphold their conviction---Case was one of circumstantial evidence, but the chain of circumstances in the case, were broken, and by no stretch of imagination, it could be said that circumstantial evidence was well-knit---Prosecution had failed to prove its case beyond reasonable doubt---No substantial evidence was on record to connect accused persons with the commission of alleged offence---Conviction and sentences awarded to accused persons by the Trial Court, were set aside accused were acquitted of the charge and were released, in circumstances.

Ahmad Yar and others v. The State 1998 SCMR 715; Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

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

----S. 302(b)---Qatl-i-amd---Motive---Not necessary for the prosecution to establish motive in the case, but, if the prosecution would set up the motive of the occurrence, the onus was on the prosecution to prove the same.

Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Credibility of an eye-witness of the occurrence, or any other prosecution witness, were ascertained by their unimpeachable statements; which could not be shaken by the defence during their cross-examination or otherwise; but when the eye-witnesses or the prosecution witnesses would improve their statements, during trial, statements of such witnesses would lose their credibility and could not be relied upon; resultantly no conviction could be upheld on such unreliable witnesses.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

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

----S. 302(b)--- Qatl-i-amd--- Circumstantial evidence--- Scope---Circumstantial evidence in unseen occurrence, should be like a well-knit chain; and each circumstance was to be connected with each other to make one complete chain; and if one link of the chain was missing, that would entitle accused to be acquitted by giving him benefit of doubt.

Muhammad Hussain v. The State 2011 SCMR 1127; Ibrahim and others v. The State 2009 SCMR 407 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

(e) Criminal trial---

----Benefit of doubt---Prosecution had to prove its case beyond reasonable doubt---Even a single doubt, if found plausible, was enough for acquittal of accused.

Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Malik Akhtar Saeed Bhatti, Ch. Rab Nawaz, Malik Riaz Khalid Awan, Sheikh Arshad Ali and Ijaz Maqbool Malik for Appellants.

Iftikhar-ul-Haq Chaudhary, Additional Prosecutor General for the State.

Date of hearing: 12th February, 2016.

2016 P Cr. L J 1668

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ZAFAR IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1383 of 2008, heard on 8th December, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Prosecution had failed to establish safe custody of recovered substance from the date of its seizure till production in the court---Material contradictions, inconsistencies and discrepancies existed in the prosecution evidence---Investigating Officer, appearing before the Trial Court having become hostile, prosecution case had become doubtful---Strong doubt existed as to whether the sample analyzed by the Chemical Examiner was taken out of the same material allegedly was recovered from accused---Such discrepancy created reasonable doubt with respect to the link with evidence produced on behalf of the prosecution---Positive reports of Chemical Examiner, in circumstances, failed to inspire confidence---Prosecution had withheld best evidence available with them---Non-production of said material witness, cast serious doubt on the prosecution case, when prosecution had failed to explain the reason of withholding of such important evidence---Prosecution case was highly doubtful and based on un-natural and unbelievable story---Deposition of prosecution witnesses, were not upto the mark---Possibility, could not be ruled out of consideration that accused was falsely implicated in the case---Prosecution having failed to prove its case against accused beyond any shadow of doubt, findings of the Trial Court, which were based on misreading, non-reading and mis-appreciation of evidence, were not sustainable in the eye of law; accused deserved acquittal---Conviction and sentence awarded to accused, were set aside and accused was acquitted of the charge, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Lal Khan v. The State 2006 SCMR 1846; Akhtar Iqbal v. The State 2015 SCMR 291 and Gul Noor Ali v. The State 2015 SCMR 279 ref.

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

----Art. 129(g)---Withholding of best evidence---Effect---Withholding of best and important evidence in the peculiar circumstances of the case, would lead to draw an adverse inference against prosecution in view of Art.129(g) of Qanun-e-Shahadat, 1984.

Mian Muhammad Irfan and Ch. Muhammad Ajmal Haq for Appellant.

Ch. Ikhlaq Ahmed, DPG for the State.

Date of hearing: 8th December, 2015.

2016 P Cr. L J 1694

[Lahore]

Before Mazhar Iqbal Sidhu, J

MOHIBULLAH HANIF and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 705 and Criminal Revision No. 689 of 2007, decided on 9th April, 2015.

Penal Code (XLV of 1860)---

----S. 228---Intentional insult or interruption to public servant sitting in judicial proceedings---Appreciation of evidence---Counsel for accused, had not argued the case, but had placed accused at the mercy of the court, as accused had made unconditional downright apologetic statement before the court having shown his repentance---Taking into consideration such unconditional apologetic statement of accused, accused was acquitted of the charge, in circumstances.

Ramachandra Mahapatra v. State of Orissa AIR 1983 SC 508 ref.

Mian Israr-ul-Haq for Appellants.

Iftikharul Haq Chaudhry, A.P.G. for the State.

2016 P Cr. L J 1718

[Lahore]

Before Mazhar Iqbal Sidhu and Malik Shehzad Ahmad Khan, JJ

MUHAMMAD YOUNIS---Petitioner

Versus

The STATE and others---Respondents

Cr. Misc. No.430-B of 2016, decided on 25th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497----Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotics---Bail, grant of---Charas weighing 1370 grams was allegedly recovered from the accused, which was slightly higher than the maximum weight mentioned in S. 9(b) of Control of Narcotic Substances Act, 1997; thus, a meagre quantity of the narcotic substance, that was 370 grams of Charas, had brought the present case within the mischief of S. 9(c) of the Act---Charas, as mentioned in the FIR, was wrapped in a shopper at the time of alleged recovery, but the contents of the FIR did not make clear as to whether the complainant had weighed the Charas with or without the shopper bag---Questions as to the net weight of the recovered narcotics and whether the case fell within the ambit of S. 9(b) or 9(c) of the Act would be determined after recording of the evidence---Mere involvement of the accused in some other criminal cases was not sufficient to refuse bail to him if he was otherwise entitled to the relief on merits of the case---Bail application was allowed accordingly.

Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 and Muhammad Rafique v. The State 1997 SCMR 412 rel.

M. Ajmal Aadal for Petitioner.

2016 P Cr. L J 1735

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Ali Baqar Najafi, JJ

QAMAR-UD-DIN BUTT---Petitioner

Versus

HOME SECRETARY GOVERNMENT OF PUNJAB and others---Respondents

W. P. No.2886 of 2016, decided on 28th July, 2016.

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

----Ss. 9(c) & 15---Possession of narcotic---Sentence---Fine imposed on accused---Non-payment of fine---Reduction in quantum of fine and release from jail---Accused who had served out his sentence of imprisonment was confined in jail just because he could not pay the fine of Rs. 500,000 imposed on him by Trial Court---Imposition of fine to the accused was the sole discretion of the court, regulated by the facts and circumstances of a case---Fine of Rs. 500,000 imposed on the accused had been maintained up to the Supreme Court, however such fact may not debar the High Court to reduce the fine---Liberty of an individual was of prime importance for the High Court and just because of non-payment of fine, which the accused could not arrange while in jail, his liberty could not be curtailed---High Court reduced fine imposed on accused from Rs. 500,000 to Rs. 50,000 and in the alternate to spend two months imprisonment---As accused had already spent two months in prison due to default of fine, High court directed to release him immediately from jail---Constitutional petition was disposed of accordingly.

Nadeem Shibli for Petitioner.

2016 P Cr. L J 1745

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD BASIT---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision No. 217 of 2014, heard on 4th September, 2015.

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

----Preamble & S. 7--- Juvenile Justice System Ordinance, 2000---Scope---Juvenile Justice System Ordinance, 2000, had been promulgated for protection of children in criminal litigation; and for their rehabilitation in the society---Provisions of said Ordinance, would exclude infliction of death penalty on the juvenile---Such was no ordinary concession given by the statute---For determination of age of accused an inquiry within the contemplation of S.7 of Juvenile Justice System Ordinance, 2000, was to be undertaken, which was an integral part of dispensation of criminal justice---All the doctrinal and juridical protections were available to an accused claiming juvenility, which certainly included the benefit of doubt---High Court observed that, in the face of two views, view favouring the accused was to be accepted.

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

----S.302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-i-amd---Plea of juvenility---Determination of age of accused---Ossification test---Method and process---Official record showed that accused's age was less than 18 years on the date of occurrence---No discrepancy was noted in the official record which was prior to the incident---Ossification test was an important method to determine the age of accused---Such test was generally regarded as a good method with a fair deal of accuracy, with limitations---Margin of error of two years had to be given on either side while determining the age of accused---Medical Board found the age of accused as 18 years, 1 month and 25 days as on the day of occurrence with a margin of error, it would be unsafe to declare accused an adult to face trial on a capital charge involving irreversible penalty of death---Impugned order, whereby accused was declined to be treated as juvenile, was set aside by High Court---Accused was directed to be sent to face trial before the court constituted under Juvenile Justice System Ordinance, 2000, in circumstances.

Muhammad Zubair v. The State 2010 SCMR 182; Muhammad Anwar v. Muhammad Sufyan and another 2009 SCMR 1073; Mst. Shabana Kousar v. Farhan Ahmad 2003 PCr.LJ 1507; Muhammad Basharat v. The State and 4 others PLD 2007 Lah. 392; The Essentials of Forensic Medicine and Toxicology; Arnit Das v. The State of Behar (2000) 5 SCC 488 and Muhammad Zubair's case 2010 SCMR 182 ref.

Muhammad Fakhar Hayat Awan for Petitioner.

Ch. Qaisar Mushtaq, Assistant District Public Prosecutor with Sajjad, SI for the State.

Malik Muhammad Kabir for Respondents.

2016 P Cr. L J 1758

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD ASIF and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 161-J, 1082 and 1074 of 2010, heard on 16th September, 2015.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Benefit of doubt---FIR had not been exhibited in evidence---Delay of just one hour and fifteen minutes in reporting the matter to the Police---Accused, were not named in the FIR as the culprits---FIR, in circumstances, would not render any sort of corroboration to the case of the prosecution qua the identification of accused persons---Complainant, was not the eye-witness of the occurrence; and nobody was mentioned in the application as well as in the FIR, as eye-witness of the incident---Names of eye-witnesses of the occurrence, for the first time were introduced, in the supplementary statement later by the complainant---One of the prosecution witnesses was given up by the prosecution---Occurrence took place at about 08.00 p.m., but no source of light was at the place of occurrence---Prosecution witnesses thus could not identify accused persons---Prosecution witnesses, who were not present at the spot at the time of occurrence, could not be believed as trustworthy or confidence inspiring, medical evidence, would not bear any significance---Recovery of pistol .30 bore allegedly effected from one accused, would not hold much importance, as there was no allegation against remaining accused persons regarding use of firearm weapons during the incident---Recovery of motorcycle, mobile phone and cash from accused persons, was not believed, because, such items were easy to plant upon accused persons---Case to the extent of accused persons, was of doubtful nature; and their conviction and sentence on the basis of such type of shaky and unreliable evidence could not be maintained---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt; impugned judgment was set aside and accused were acquitted of the charges against them, and were released forthwith; in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect accused with the commission of offence.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----S. 342---Examination of accused---If any piece of evidence was not put to accused in his statement under S. 342, Cr.P.C., same could not be used against him for his conviction.

Muhammad Shah v. The State 2010 SCMR 1009 and Sheral alias Sher Muhammad v. The State 1999 SCMR 697 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery--- Weapon of offence, recovery of---Scope---Recovery of weapon of offence, was merely a corroborative piece of evidence, and in absence of any direct evidence, against accused, same could not be used against them.

(e) Criminal trial---

----Benefit of doubt---Scope---Prosecution, was obliged to prove its case against accused beyond any reasonable doubt; and if it would fail to do so accused would be entitled to the benefit of doubt---If there was an element of doubt as to the guilt of accused, the benefit of that doubt, must be extended to accused instead of prosecution; not as a matter of grace, but of right.

Muhammad Akram v. The State 2009 SCMR 230 and Waqar Nazir and others v. The State 2007 SCMR 661 rel.

Mudassar Naveed Chatha for Appellants (in Cr. App. No. 161-J and 1082 of 2010).

Nemo for Appellants (in Cr. App. No. 1074 of 2010).

Irfan Zia, Deputy Prosecutor General for the State.

Salman Safdar for the Complainant.

2016 P Cr. L J 1773

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi and Raja Shahid Mehmood Abbasi, JJ

Raja WAHEED MEHFOOZ---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT-II, RAWALPINDI and 2 others---Respondents

W. P. No. 3625 of 2015, decided on 21st December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 167---Anti-Terrorism Act (XXVII of 1997), S.21-E---Physical remand of accused---Scope---Local Police, on event of refusal of pre-arrest bail to accused persons, by the Trial Court, arrested accused persons and after completion of twenty four hours with the Police; produced accused before the Trial Court with request of their physical remand---Trial Court in two lines order, granted 15-days physical remand of accused persons to the Police---Principles provided in S.167, Cr.P.C., were the guidelines for the court before whom, accused were produced for physical remand; it was mandatory requirement within the view of S.167(3), Cr.P.C., that, the court authorizing under said section detention in the custody of the Police, would record its reasons for so doing---Remand was not to be granted mechanically without application of mind, rather it was to be granted only in case of real necessity; and also that the period of such remand was to be fixed with due regard to reasonable requirements---Remand order, passed by the court, did not reflect the fact that before handing over accused persons on physical remand to the Police, neither the Police record was consulted by the court, nor even the submission made on behalf of accused persons, were taken into consideration---Trial Court, was mistaken in understanding that while exercising its powers under S.21-E of Anti-Terrorism Act, 1997 was not required to give reasons for the order granting physical remand of accused persons, court's such interpretation, was completely in violation of the provision of S.21-E(3) of Anti-Terrorism Act, 1997---Impugned order was set aside, accused persons were granted post-arrest interim protective bail, in order to enable them to approach the competent forum for their bail by moving application.

Khairati Ram's case AIR 1931 Lah. 476; Rashid v. The State and 2 others PLD 1970 Lah. 389; Hafeezur Rehman v. The State PLD 1993 Pesh. 252 and Senator Asif Ali Zardari v. The State 2000 MLD 921 ref.

Mohammad Ilyas Siddiqui for Petitioner.

2016 P Cr. L J 1783

[Lahore]

Before Shahid Hameed Dar, J

ASIF MUHAMMAD SULEHRI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE SIALKOT and 6 others---Respondents

Writ Petition No. 17231 of 2011, heard on 10th December, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 156, 173, 435 & 439-A---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document---Administrative order of Magistrate---Revision---Scope---Investigating Officer, on finalization of investigation, found case filed by the complainant false and submitted a cancellation report before Area Magistrate, who agreed to report of Investigating Officer---Complainant, being aggrieved of said order filed revision petition under S.439-A, Cr.P.C., before Court of Session, which having been allowed by Additional Sessions Judge vide impugned order, complainant had filed constitutional petition---Order regarding discharge of an accused or cancellation of a case pending investigation etc., was not amenable to revision under Ss.435 & 439-A, Cr.P.C., for the reason that said order would necessarily constitute an administrative order and not judicial order---Judicial order and not the administrative order was open to revision---Area Magistrate, would be deemed to have taken cognizance of an offence as a court of law and perform as a judicial officer, when he would formulate an opinion through application of mind, as to summoning of an accused under S.204, Cr.P.C.---Earlier to the stage of submission of challan under S.173, Cr.P.C., orders passed by a Magistrate, pending investigation of a case, had little to do the exercise of judicial powers vested in him under the law---Impugned order of Additional Sessions Judge was set aside, as one without jurisdiction, in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Wazir v. The State PLD 1962 Lah. 405; Brahm Dev v. Emperor AIR 1938 Lahore 469 and Ramsarup v. State AIR 1951 Raj. 146 ref.

Ch. M. S. Shad for Petitioner.

Ch. Muhammad Shabbir Gujjar, Assistant Advocate General Punjab for the State.

Imran Abbas Khawaja for Respondent No.4.

Muhammad Afzal Butt for Respondents Nos. 3 to 6.

2016 P Cr. L J 1800

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

AMJAD SIDDIQUI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 352 of 2015, decided on 13th October, 2015.

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

----Ss. 9(c) & 48---Constitution of Pakistan, Art.10-A---Possessing and trafficking narcotics---Appreciation of evidence---De-sealing/opening the parcel of case property---Fair trial, concept of---Accused had assailed the order of the Trial Court, whereby request of accused for de-sealing/opening the parcel of the case property, was turned down---Accused, was allegedly burdened with the allegation of possessing the huge quantity of narcotics; and charge against him was one of capital punishment---Entire case property produced in the court, must be opened in the court, so that the witnesses; and other concerned, could see the same---Trial Court, without opening the sealed parcel, had illegally exhibited the case property, without showing it to the witnesses---Observation of the Trial Court was based on presumption---Trial Court by not opening the case property, even on repeated request of the defence Counsel, had strangulated the fair trial, which was a vested right of accused---Refusal to expose the case property in the open court, was even against the mandate of Art.10-A of the Constitution, which enshrined the fair trial---Trial Court, without any lawful justification, could not decide the case on presumption and surmises---Prosecution was to produce the case property in the court; and get it exhibited---Court was directed to open/de-seal the case property in the open court, so that the witnesses; and other concerned, could see the same in the open court; and accused or his counsel, could cross-examine the recovery witness in accordance, with law---Appeal was accepted and Trial Court was directed to open/de-seal the case property in the open court accordingly.

(b) Words and phrases---

----"Exhibit"---Meaning explained.

Duhaime's Law Dictionary; Black's Law Dictionary; Collins English Dictionary and Cambers English Dictionary ref.

(c) Constitution of Pakistan---

----Art. 10-A---Fair trial---Concept of fair trial, had always been the golden principle of the administration of justice; and after incorporation of Art.10-A of the Constitution, it had become more important to adopt due process of law, as envisaged in the Constitution, as well as in local laws.

Raja Shakeel Ahmad for Appellant.

2016 P Cr. L J 1832

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD ZUBAIR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 351, 326 of 2009 and Murder Reference No.89/RWP of 2009, heard on 12th October, 2015.

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

----Ss. 302(b), 201, 364 & 34---Qanun-e-Shahadat (10 of 1984), Art.72---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Prosecution's own case was that there was no eye-witness of the occurrence; and the case was based upon circumstantial evidence---Neither last seen evidence, nor evidence of wajtakkar was on record---Incident was a blind murder---Prosecution could not bring on record the mode and place of murder---Only incriminating evidence against accused was, e-mail record and recovery of dead body from a Baithak---E-mail, did not bear the names of accused persons on it, and same was not even produced in the court according to law to meet the requirements of Art.72 of Qanun-e-Shahadat, 1984---Attested copies being not available, same were not exhibited before the court during the trial---E-mails relied by the prosecution, were not corroborated by any other confidence inspiring evidence---Prosecution had failed to prove that the Baithak where the occurrence took place was in exclusive possession of accused---Cause of death, was also shrouded in mystery---No further evidence had been led by the prosecution to make accused responsible for the recovery of the dead body in disfigured and swollen condition---Joint pointation was inadmissible evidence---No direct evidence of murder being available on file, prosecution was under burden to prove all links making out one straight chain, but same was not found in the case---Conviction and sentence of accused were not sustainable--- Prosecution having not been able to discharge its onus to prove the guilt of accused satisfactorily beyond shadow of any reasonable doubt, impugned judgment of the Trial Court was set aside extending benefit of doubt to accused; and he was acquitted from the charge and was released, in circumstances.

Imran v. The State 2015 SCMR 155 rel.

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

----S. 302(b)---Appreciation of evidence---If ocular testimony of a witness was to be disbelieved against the particular set of accused and was to be believed against another accused facing the same trial, then the court must search for independent corroboration on material particulars.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. The State 2004 SCMR 1185 rel.

Muhammad Illyas Siddiqui for Appellants.

Nemo for the Complainant.

M. Usman Iqbal, DPG and Muhammad Waqas Anwar, DPG with Nazir, SI. for the State.

2016 P Cr. L J 1848

[Lahore]

Before Erum Sajad Gull, J

MUHAMMAD AZAM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1227 of 2012, heard on 4th May, 2016.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Consent of a minor victim---Scope---Violence marks, absence of---Effect---Occurrence had taken place in the intervening night, and the FIR of the case had been lodged on the very next day at 02:30 p.m.---Police station was five kilometer away, thus the FIR could be said have been recorded promptly---Delay in registration of FIR was not fatal in such cases---Victim, a minor, had categorically stated that the accused had raped her, while the co-accused was standing nearby threatening her---Eye-witnesses, victim's father and cousin, had corroborated her statement---Reason as to why the victim had gone out of her house in the middle of the night was to ease herself which was a natural phenomenon in villages, and when the wife of the complainant woke up and found the victim missing, she woke up the complainant, who with his relatives went searching for the victim---Investigating Officer although had stated that there was a bathroom in the house of the complainant and there was no reason why the victim should have gone out of her house to ease herself, but the Investigating Officer had failed to produce site plan of the house of the complainant to prove his statement---Bald statement of the Investigating Officer could not be relied upon, and the Ipse dixit of the police, even otherwise, was not binding on the Court---Medical examiner had categorically stated that the victim had been raped---Doctor had further stated that it was not necessary that on tearing of the hymen there was bleeding, and that no marks of violence had been found on the body of the victim---Rape, having been proved by cogent and concrete evidence, including medical evidence, absence of marks of violence on the body of the victim would not negate the prosecution case and conviction could have been awarded on the solitary statement of the prosecution alone---Accused, after medically examination, had been declared fit---According to the DNA test report, the specimen taken from the victim had matched with that of the accused---Statement of the victim supported by her parents, would be enough to prove the charge of zina-bil-jabr, when there was no motive for the parents of the victim to falsely implicate the accused in such heinous offence, as the parent could not be believed to have put their family's honour at stake and ruin the reputation of their minor daughter for life---Contention that the victim was a consenting party would not entitle the accused for acquittal as consent of a minor was no consent in the eye of law---Accused had been declared guilty during investigation of the case---High Court observed that such like heinous crimes could not be lightly brushed aside, as the same corroded the society and destroyed the entire family forcibly, subjecting the family to shame and disgrace for the rest of their life---Prosecution had succeeded to prove its case beyond reasonable doubt--- Appeal against conviction was dismissed accordingly.

Mehboob Ahmad v. The State 1999 SCMR 1102; Habibullah v. The State 2011 SCMR 1665; Riaz v. The State 1994 SCMR 358 and Abdul Rehman and others v. The State 2003 PCr.LJ 1298 rel.

Muhammad Akmal Saleemi for Appellant.

Nadeem Muhammad Akram for the Complainant.

Iftikhar-ul-Haq Chaudhary, Additional Prosecutor-General for the State.

2016 P Cr. L J 1867

[Lahore]

Before Mazhar Iqbal Sidhu and Sardar Ahmad Naeem, JJ

Mian ABDUL GHAFOOR WATTOO---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 2 others---Respondents

W. P. No. 40449 of 2015, decided on 20th January, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 10---Criminal Procedure Code (V of 1898), S. 498---Corruption and corrupt practices---Pre-arrest bail, refusal of---Approved lay out of the Housing Scheme was different from what had been displayed to the public at large---More applications had been invited and received along with the requisite amounts from the customers than the available number of plots---Public money was yet to be recovered from the accused for repayments to the effectees---High Court observed that incidents of fraud in real estate business were rampant in the society undermining the warrant of law and destroying the society---Financial corruption and commission of white collar crimes and corruption in the business of real estate in the society were the big issues and the same were liable to be curbed with iron hands---Extra-ordinary relief of pre-arrest bail, in the circumstances of the case, could not be granted---Constitutional petition for grant of bail was dismissed in circumstances.

Jennison v. Baker (1972) 1 All ER 997, 1006 rel.

Ahmad Awais and Waheed Ahmad for Petitioner.

Arif Mehmood Rana A.D.P.G.A and Ch. Khaliq-uz-Zaman D.P.G.A for NAB.

2016 P Cr. L J 1882

[Lahore]

Before Shahid Hameed Dar and Muhammad Qasim Khan, JJ

JAMSHED KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 245 and Capital Sentence Reference No. 11-N of 2010, heard on 22nd May, 2015.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Veracity of the allegation against accused was not doubtful, as counsel of accused, had frankly conceded that, conviction had been correctly made by Trial Court; and there was nothing wrong with the same---Prosecution had successfully proved the possession of narcotics substance from accused---Conviction of accused was sustained---Prosecution had not agitated at any stage that accused was a previous convict; or he bore a nasty character, spotted with ugly allegation alike---Enigmatic abandoning of co-passengers of accused by the prosecution, was a crucial circumstance, which needed to be looked at with doubt, as to the award of capital punishment to accused---Accused's maiden involvement in such like offence could be considered a mitigating circumstance with regard to quantum of sentence---Extreme penalty of death would be too harsh to be inflicted on accused---Accused, did not have any previous criminal antecedent, so had to be believed the first offender---Death sentence of accused, was converted into imprisonment for life, in circumstances.

Muhammad Tariq's case 2009 SCMR 1220 and Gul Badshah v. The State 2011 SCMR 984 ref.

Ch. Dost Muhammad Kahoot for Appellant.

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

2016 P Cr. L J 1896

[Lahore]

Before Mehmood Maqbool Bajwa and Farrukh Gulzar Awan, JJ

Malik MUNIR HUSSAIN and others---Appellants

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Criminal Appeals Nos. 1492, 1659 and 1436 of 2012, heard on 17th September, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 10(a)---Qanun-e-Shahadat (10 of 1984), Arts. 70, 71 & 75---Illegal pecuniary advantages---Appreciation of evidence---Personal knowledge, absence of---Mens rea---Proof---Accused persons were employees of National Saving Center and were alleged to have embezzled huge amount---Trial Court, on the basis of documentary evidence produced by officials, convicted accused persons and sentenced them to imprisonment for ten years along with fine---Validity---Prosecution witness who produced audit report could not substantiate the case of prosecution to prove guilt of accused persons for the reason that he did not conduct the audit himself---Another prosecution witness who deposed against accused persons had no personal knowledge about the scam and got information through record as admitted by him in cross-examination---Evidence of complainant could not prove the case of prosecution as, he, after getting information about fraud lodged crime report and whatever he stated was based on the report of special audit conducted in year 2002---Prosecution witness who produced the record before investigating officer was just an attesting witness of recovery memos and no document bore his signatures---Evidence of such prosecution witnesses did not prove culpability of accused persons as they just produced documents before investigating officer who took those in custody through memos---Evidence adduced suggested irregularities on the part of all the three accused persons but in absence of evidence regarding mens rea charge could not be established---High Court set aside the conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.

The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 and Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166 rel.

Syed Athar Hussain Bukhari for Appellant No.1.

Qazi Misbah ul Hassan for Appellant No.2.

Muhammad Irfan Malik for Appellant No.3.

Muhammad Farhad Tirmazi, Senior Special Prosecutor for National Accountability Bureau for the State.

2016 P Cr. L J 1916

[Lahore]

Before Atir Mahmood, J

YASIR LATEEF---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 9559-B of 2016, decided on 23rd August, 2016.

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

----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Penal Code (XLV of 1860), Ss. 420 & 109---Hacking social media account belonging to someone else and abusing personal information---Bail, refusal of---Accused was nominated in the FIR and had been ascribed with a specific role of hacking Facebook ID of the complainant and misusing the same for uploading her personal pictures on internet without her permission---During the course of investigation, accused had been found guilty of the offence alleged against him---Offence alleged against the accused was heinous in nature as it ruined the entire life of the victim as being disgraced in the eyes of general public and her family---Sufficient evidence was available on record which was not only threatening but obnoxious and filthy in nature and prima facie connected the accused with the commission of the alleged offence--- High Court observed that such offences damaged the fibre of the society and were liable to be curbed very strongly by the law enforcing agencies---Accused was refused bail accordingly.

Shahzad Ahmed v. The State 2010 SCMR 1291 ref.

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

----S. 497---Grant or refusal of concession of bail---Discretionary relief---Same could not be agitated as a matter of right.

Saleem Akram Chaudhry for Petitioner.

Rana Zafar Iqbal, Standing Counsel for Federation.

Sh. Muhammad Siddiq for the Complainant.

2016 P Cr. L J 1928

[Lahore]

Before Muhammad Anwaarul Haq, J

NISAR AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.418, 143 and Criminal Revision No.366 of 2013, heard on 18th May, 2016.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Adverse presumption---Complainant intentionally did not report the matter to police when his wife (injured and died later on) was in a position to make her statement before police---Effect---Such statement of injured/deceased, even if recorded, during her lifetime at police station, at District Headquarter Hospital or before police official who accompanied her to the hospital, was not brought on record by prosecution as the same was unfavourable to prosecution case---Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, was inferred in circumstances.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Adverse presumption---Dishonest narration of facts---Both parties, complainant and accused did not narrate occurrence in honest manner and maliciously tried to twist facts in their own favour---Effect---Occurrence was admitted by accused to the extent of injuries to the deceased while bashing with tractor, with a variation that he was not driving the tractor at relevant time---Ocular account was not believed even by Trial Court in its totality---High Court was left with no other option but to sift grain from the chaff to draw its own independent conclusion for just decision of case.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 fol.

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

----Ss. 302(b) & 315---Criminal Procedure Code (V of 1898), S. 200---Qatl-i-amd and qatl shibh-i-amd---Appreciation of evidence---Sentence, reduction in---Private complaint was filed wherein complainant alleged that accused had murdered his wife by running tractor over her---Trial Court convicted the accused for qatl-i-amd and sentenced him to imprisonment for life---Quarrel took place between accused and complainant and in the same sequel deceased received injuries on her person being struck with tractor driven by accused---Occurrence was not a case of driving over the tractor upon deceased as narrated by complainant and prosecution witness---Conviction of accused under S. 302(b), P.P.C. was not a legal conviction as element of intention to cause death of wife of complainant was totally missing---High Court set aside conviction from qatl-i-amd under S. 302(b), P.P.C. to qalt shibh-i-amd under S. 315, P.P.C. and sentence was reduced to imprisonment for seven years with payment of Diyat amount to legal heirs of deceased---Appeal was allowed accordingly.

Humayoun Rashid for Appellant No.1 (in Criminal Appeal No. 418 of 2013).

Humayoun Rashid for Appellant No.2 (in Criminal Appeal No. 143 of 2013).

Humayoun Rashid for Respondent No.1 (in Criminal Appeal No. 366 of 2013).

Chaudhry Muhammad Mustafa, Deputy Prosecutor-General for the State.

Ch. Rab Nawaz for the Complainant.

2016 P Cr. L J 30

[Peshawar]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

RIAZ KHAN---Appellant

Versus

The STATE---Respondent

Cr. A. No.117-B of 2011, decided on 20th November, 2014.

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

----Ss. 302, 324, 449, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, rioting, common object, act of terrorism---Appreciation of evidence---Report in the case had been lodged after two hours of the occurrence---Father, mother and their daughter having lost their precious lives at the hands of desperate and dangerous criminals in the dark hours of night, none in such like areas due to fear dared to come out from their houses---Transport facilities for taking the dead bodies to the mortuary or Police Station, being not available, delay in such like circumstances, was of little importance, and would not be helpful to the defence---Five empties of 7.62 bore, recovered from the place of wardat, had not been sent for examination of the Ballistic Expert so as to ascertain, as to whether, it had been fired from one fire-arm or more--Opinion formed by the Ballistic Expert by no means was sacrosanct---No hard and fast rule could be laid down as regarded the weight to be given to the Expert report---If a case otherwise stood proved against accused by reliable, truthful and confidence inspiring evidence, report of Expert, would lose its weight---Complainant, who had stated in support of his stance as narrated in his initial report was subjected to lengthy and taxing cross-examination, but nothing could be extracted from his mouth which could diminish the probative worth of his testimony---No reason existed for the complainant to substitute the real culprits with that of accused, in absence of any serious enmity, which otherwise was a rare phenomenon---Accused, who was absconded, had been arrested after about five years of the occurrence, and no plausible explanation had been given by accused for his such long abscondence---Abscondence of accused by itself though was not sufficient to prove his guilt, but could be taken as a corroborative piece of evidence---Version of prosecution, was duly corroborated by medical evidence---Recoveries were effected from the place of accused---Motive behind the occurrence and other attending circumstances of the case and all those facts, when taken together, supported the ocular account of complainant---Guilt of accused had been proved through the confidence inspiring testimony of the complainant, recoveries made by Investigating Officer from the spot, medical evidence and long standing abscondence of accused---Accused had rightly been convicted, in circumstances---Since, on the same set of evidence, co-accused was similarly convicted and sentenced by the Trial Court, and his conviction and sentences were maintained upto Supreme Court, considering the same as mitigating circumstance of the case, sentences awarded to accused by the Trial Court, would meet the ends of justice.

Muhammad Ayub v. The State PLD 1964 (W.P.) Pesh. 288; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Shah Nawaz v. Lal Khan and 2 others 1972 SCMR 286 and Rohtas Khan v. The State 2010 SCMR 566 distinguished.

Allah Wadahey and another v. The State 2001 SCMR 25; Noor Muhammad v. The State and another 2005 SCMR 1958; Muhammad Hanif v. The State PLD 1993 SC 895; Liaqat v. The State 2006 SCMR 33; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. The State 1985 SCMR 2070; Amir Gul v. The State 1981 SCMR 182; Mst. Roohaida v. Khan Bahadur and another 1992 SCMR 1036; Qaiser Khan and others v. The State and others 2009 SCMR 471 and Mir Afzal Khan v. The State 2011 SCMR 171 ref.

(b) Criminal trial---

----Evidence--- Interested witness--- Corroboration--- Scope--- If an interested witness claimed to be an eye-witness, charged a person with the commission of an offence, the first thing, which the court had to determine, was whether he saw the occurrence and was in a position to identify accused; secondly, whether said witness should be believed for convicting the offender without corroboration---If the interested witness had charged only one person with the commission of offence, or had charged more than one person and the number of person charged by him appeared to be reasonable from the circumstances of the case, in the absence of anything in the evidence, which rendered it unsafe to rely on the evidence, his evidence was to be accepted without corroboration---Substitution was a thing of rare occurrence and could not be assumed readily and he who asserted substitution, must lay foundation for that---If, however, the court found that the interested witness had exaggerated the number of accused, the court would insist for corroboration of his testimony from some additional circumstances in the case---Corroboration to the testimony of the interested witness, need not always be from an independent witness supporting the story put forward by interested witness---Corroboration could be sought from the circumstances in the case which would satisfy the mind of the court, that the witness had spoken the truth---What would be those circumstances, was not possible to lay down with precision, as those facts would vary from case to case according to the facts and circumstances of each case---Corroboration in the case of an interested witness, need not be of the same probative force as the case of an accomplice---Statements of the witness on account of being interested witness, could only be discarded, if it was proved that an interested witness, had ulterior motive on account of enmity or any other consideration---No rule of law existed that statement of an interested witness, could not be taken into consideration without corroboration, and even uncorroborated version could be relied upon, if supported by the surrounding circumstances.

Niaz v. State PLD 1960 SC (Pak) 387; Nazir and others v. The State PLD 1962 SC 269; Khadim Hussain v. State 2010 SCMR 1090; Ashfaq Ahmad v. State 2007 SCMR 641; Shoukat Ali v. The State PLD 2007 SC 93; Muhammad Mansha v. The State 2001 SCMR 199; Iqbal alias Bala v. The State 1994 SCMR 1 and Muhammad Ehsan v. State 2006 SCMR 1857 ref.

Inamullah Khan Kaki for Appellant.

Syed Fakhrual Din Shah for Respondent.

Saif ur Rahman Khan Khattak Additional A.G. for the State.

Date of hearing: 20th November, 2014.

2016 P Cr. L J 54

[Peshawar]

Before Nisar Hussain Khan, J

MUHAMMAD USMAN---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.1659-P of 2015, decided on 21st September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409 & 109---Foreign Exchange Regulation Act (VII of 1947), Ss.4 & 23---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Criminal breach of trust by public servant, or by banker, merchant or agent, abetment, illegal business of foreign currency, and money laundering---Bail, grant of---Further inquiry---Section 409, P.P.C., was not applicable in the circumstances of the case---Punishment provided under S.4 of Anti-money Laundering Act, 2010, though entailed punishment of 10 years, but as per requirement of S.3 of the said Act, prosecution was yet to establish in terms of S.3(a)(b)(c) that it was the proceed of crime--- Maximum punishment provided under relevant section of Anti-Money Laundering Act, 2010, was two years---Investigating Agency had not investigated the matter on the lines to meet the requirements defining clause of the crime, which made the case of accused as that of further inquiry---Accused was admitted to bail, in circumstances.

Arshid Hussain Yousafzai for Petitioner.

Farhad Ali for the State.

Date of hearing: 21st September, 2015.

2016 P Cr. L J 67

[Peshawar]

Before Muhammad Ghazanfer Khan, J

SHER AFZAL KHAN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 32-D of 2015, decided on 3rd July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 517, 249-A & 265-K---Arms Act (IX of 1878), S. 15---Quashing of proceedings---Principles---Possession of arms of any description without license prohibited in certain places---Disposal of property regarding which offence committed---Inherent powers of High Court---Limitations---Superdari of motorcar---Proof of ownership, requirement as to--- Alternate remedy available under S. 249-A or 265-K, Cr.P.C.---Interference with investigation under S. 561-A, Cr.P.C.--- Scope--- Huge quantity of arms and ammunition was alleged to have been recovered from motorcar of accused without any license or permit--- Accused filed application for superdari of said motorcar, which was dismissed by court---Validity---Accused had failed to produce any document to show that he was lawful owner of vehicle in question---Arms and ammunition had been recovered from secret cavities of motorcar---Plea advanced by accused that he had no knowledge of recovered arms and ammunition did not appeal to prudent mind---Once FIR was registered, superior courts, having constitutional, supervisory and inherent jurisdiction, had consistently refrained from direct interference with investigation being conducted by local police---Courts could not exercise control over investigation which might be prejudicial to fairness of proceedings, apart from being without jurisdiction---Court, while going through contents of FIR and record of case, could not find legal infirmity or any jurisdictional defect which could justify interference in matter under S. 561-A, Cr.P.C., unless very exceptional circumstances existed, which was not the case of accused---High Court observed that remedy of quashment of proceedings was not available when alternate remedy was available in shape of S. 249-A or S. 265-K, Cr.P.C.---Petition for quashment of proceedings was dismissed accordingly.

Doctor Ghulam Mustafa v. The State 2008 SCMR 76 and Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317 rel.

Liaqat Ali Amjad for Petitioner.

Adnan Ali, Assistant A.G. for the State.

Date of hearing: 3rd July, 2015.

2016 P Cr. L J 89

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

ABDUL HAMEED---Appellant

Versus

The STATE and others---Respondents

Cr. A. No. 30 of 2009, decided on 9th June, 2015.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Report was lodged by the complainant, with utmost promptitude---Presence of the complainant along with his son, son-in-law and another witness at the residence of his son-in-law on the eve of marriage ceremony of his granddaughter, and daughter of his son-in-law, was natural---Nothing had been brought on record, even by the defence to question the presence of the complainant, deceased and eye-witnesses at the scene of occurrence at the relevant time---Complainant, being father, would spare the guilty and charge an innocent person for the murder of his young son was in imaginable---Not only presence of the complainant, deceased and eye-witnesses at the time of occurrence, was natural, but annoyance of accused with his brother, was also not something unnatural, when he was not invited by his brother on the occasion of marriage ceremony of his daughter---Even in the absence of evidence with regard to availability of lighting facility, no question, could possibly be raised about the identification of accused, being closely related to the complainant and eye-witnesses---Even though the site plan, was not a substantive piece of evidence, yet preparation of site plan on the pointation of the complainant, would make up the deficiency to a greater extent, when the other evidence, including recovery of crime empties and blood-stained earth from the spot, were enough proof to confirm the scene of occurrence and thereby lend credence to the FIR and prosecution version---Postmortem examination, also substantiated the prosecution case---Overwhelming, confidence inspiring, coherent and trustworthy evidence, was available in support of the prosecution case comprising the promptly lodged FIR, charge of single accused, supporting medical evidence and consistent and mutually corroborative eye-witness account furnished by the complainant and the eye-witnesses---Absence of even distant possibility of false implication and substitution of the actual accused, proved the case of the prosecution against accused beyond any shadow of doubt---Reason furnished by the Trial Court for awarding lesser punishment than the capital one, was plausible, in view of the fact that the motive, if any, was not against the deceased, who fell victim to the firing of accused, when he was in extreme rage---Appeal of accused against his conviction and sentence and revision by the complainant for enhancement of sentence awarded to accused, were dismissed.

2005 SCMR 810; 2003 SCMR 581; PLD 1993 SC 895; 2005 SCMR 1568 and 2006 MLD 532 rel.

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

----S. 302(b)--- Qatl-i-amd--- Recovery of crime weapon and empties---Scope---Recovery of crime weapon and empties, were pieces of evidence of corroboration and even if recovery was not proved in the presence of reliable, and unimpeachable ocular testimony and other circumstantial evidence, it would not adversely affect the prosecution case.

2005 SCMR 1568 rel.

(c) Criminal trial---

----Motive---Absence or weakness of motive---Effect---Absence or weakness of motive, would not render the case of prosecution false or fabricated.

2005 SCMR 1568; 2005 SCMR 427; 2006 SCMR 1744; 2006 SCMR 954 and 2008 SCMR 796 rel.

Qazi Muhammad Arshad and Raheela Mughal for Appellant.

Muhammad Naeem Abbasi, A.A.-G. and Masood Azhar for Respondents.

Date of hearing: 9th June, 2015.

2016 P Cr. L J 114

[Peshawar]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

RIAZ AHMAD---Appellant

Versus

The STATE and another---Respondents

Cr. Appeal No.35-B of 2009, decided on 10th March, 2015.

(a) Criminal trial---

----Benefit of doubt---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 the accused for acquittal---Many doubts were not 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---Accused, was always considered as the most favourite 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's case 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Occurrence had not taken place in the mode and manner as alleged by the complainant---Circumstantial evidence did not corroborate the ocular and medical evidence---Complainant and other prosecution witness, who claimed to be the eye-witnesses of the alleged occurrence, were not the truthful witnesses, as their testimony, was full of contradictions, omissions and improvements---Judgment of the Trial Court, was based on correct and lawful appreciation of evidence and visualized no illegality---Abscondence of accused, though was for about 9 years, but abscondence alone, could not be substitute for real evidence---People do abscond in order to save themselves from agony of protracted trial---Sometimes they disappear, because of fear of the Police and even of the complainant party---Abscondence, was not evidence by itself, but was a state of mind of a person, who after being charged either rightly or wrongly would react in a particular way---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court sitting in appeal against acquittal, always would remain 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---No such infirmity had been found in the impugned judgment---Trial Court had rightly acquitted accused by extending him the benefit of doubt, after proper appraisal of evidence, for which no exception could be taken---Appeal against acquittal was dismissed.

Muhammad Shafi v. Muhammad Asghar and others PLD 2004 SC 875; Farman Ali and others v. State PLD 1980 SC 201; 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 and Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538 ref.

Farhanullah Gran for Appellant.

Qudratullah Khan Gandapur, Asstt. A.G. for the State.

Pir Liaqat Ali Shah and Farooq Khan Sokari for the Complainant.

Date of hearing: 10th March, 2015.

2016 P Cr. L J 137

[Peshawar]

Before Qalandar Ali Khan, J

SHABBIR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Cr. M. No. 84-A of 2015, decided on 20th March, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Khyber Pakhtunkhwa Arms Ordinance (III of 2013), S. 15---Qatl-i-amd, common intention---Unlicensed manufacture, sale and repair, power to prohibit transportation, prohibition of going armed without licence, unlicensed possession of arms etc., arms to be deposited at police station or with licensed dealers---Application for cancellation of bail, refusal of--- Plea of alibi---Further inquiry---Principles---Delay in FIR---Accused implicated through statement under S. 164, Cr.P.C.---Complainant found his son lying on road in injured condition, who later died---Complainant implicated present accused by way of his statement under S. 164, Cr.P.C. alleging that accused persons, earlier to alleged occurrence, had threatened his deceased son with dire consequences due to dispute over transaction relating to narcotics---Assertion that non-charging of accused in FIR and charging him with some delay would render case one of further inquiry would not be of universal application in each and every case---Complainant had narrated true facts in his promptly lodged FIR and charged no one on mere suspicion, as he was not present on the spot at the time of occurrence---Complainant had charged accused only after getting knowledge of motive from his wife and son---Circumstantial evidence like recoveries of empties from spot and positive report of Fire Arms Expert regarding their matching with weapon recovered from house of accused on his pointation, would prima facie substantiate charge against accused---Contention of accused that fire arm injuries could be self-inflicted in view of recovery of revolver lying besides body of deceased, did not find support from record, as postmortem report showed multiple small injuries indicating use of short gun rifle in commission of offence---Presence of black spot on one of the injuries in postmortem report was yet to be explained by medical officer in absence of description of the same as charring marks caused by firearm from close distance---Evidence collected by investigating agency and motive, which was even supported by brother and close relative of accused in their statement under S. 161, Cr.P.C., had gone long way to prima facie connect accused with alleged offence---As trial against accused had already commenced and one prosecution witness had already been examined, discussion and findings on merits of case would not be desirable, as same might prejudice case of either of parties---Case against other accused, who had been on pre-arrest bail, was distinguishable, as he had been charged by complainant during his statement under S. 164, Cr.P.C. after more than three months of occurrence, disclosing the same motive which had been disclosed to complainant by his wife and son---Nothing had been recovered from said accused---Said accused had also placed documents on record showing himself out of country at time of occurrence---Order confirming ad interim bail of accused was based on proper appreciation of facts and circumstances of case, and same, therefore, could not call for cancellation---Application for grant of bail and the other for cancellation of bail were dismissed accordingly.

(b) Criminal trial---

----Administration of justice---Every criminal case had its own peculiar circumstances, which are to be invariably taken into consideration while dealing with case.

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

----S. 497(2)--- Bail--- Principles--- Further inquiry--- Accused not nominated in FIR--- Delayed implication of accused through supplementary statement---Assertion that non-charging of accused in FIR and charging him with some delay would render the case one of further inquiry was not rule of universal application in each and every case.

Noor Muhammad v. The State 2008 SCMR 1556; Qamar alias Mitho v. The State and others PLD 2012 SC 222; Mehboob v. Sajjad Ahmad another PLD 2008 Pesh. 69; Abdul Aziz Khan Niazi v. State through Chairman NAB, Islamabad PLD 2003 SC 668; Muhammad Saleem v. The State and another 2003 MLD 145; Safdar Ali v. The State 2008 PCr.LJ 129; Dildar Bakhsh v. State and others PLJ 2010 Cr.C. (Lahore) 507; Mureed and another v. The State 2010 YLR 2671; Muhammad Ali v. The State 2008 PCr.LJ 87; Yousaf Masih v. The State 2010 PCr.LJ 392 and Qurban Ali alias Fouji v. The State 2007 PCr.LJ 647 ref.

Abdul Saboor Khan for Petitioner.

Raja Muhammad Zubair, Assistant Advocate-General for the State.

Masood Azhar for the Complainant.

Date of hearing: 20th March, 2015.

2016 P Cr. L J 150

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chammkani, JJ

Mst. HINA RUKHSANA---Petitioner

Versus

The PROVINCIAL POLICE OFFICER/INSPECTOR GENERAL OF POLICE KHYBER PAKHTUNKHWA and 10 others---Respondents

Writ Petition No. 807-P of 2014, decided on 3rd June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 169--- Constitution of Pakistan, Art. 199---Constitutional petition---Discharge of accused---Failure to get bond---Effect---Complainant was aggrieved of the order passed by Trial Court whereby he affirmed opinion of Investigating Officer whereby accused was placed in Column No. 2 of challan---Validity---Main theme of S. 169, Cr.P.C. was availability of sufficient or deficient evidence on the basis of which Investigating Officer had to form opinion about guilt or innocence of accused---Powers under S. 169, Cr.P.C. were to be exercised by Investigating Officer when he could not find sufficient evidence or when there was reasonable ground or suspicion to justify forwarding of accused, in such circumstances Investigating Officer could place name of accused in Colum No. 2 of challan and thereafter it was the job of Trial Court whether to agree with the opinion of Investigating Officer or not---If the Trial Court did not agree with opinion of Investigating Officer it might summon accused placed in Column No. 2 of challan and could treat him as a regular accused by formally charge-sheeting him---Only irregularity committed by Investigating Officer/Station House Officer was that he while releasing respondent under S. 169, Cr.P.C. did not obtain his bail bond with or without sureties--- High Court directed accused to submit bail bond to the satisfaction of Trial Court---Petition was dismissed accordingly.

Sarwar and others v. The State and others 2014 SCMR 1762 rel.

Astaghfirullah and Nasrum Minallah for Petitioner.

H. Muhammad Pervez Swati and Mian Arshad Jan, A.A.G for the State.

Date of hearing: 3rd June, 2015.

2016 P Cr. L J 172

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Qalandar Ali Khan, J

HAMID and another---Petitioners

Versus

Syed SIKANDAR SHAH and 3 others---Respondents

W. P. No.3361-P of 2013, decided on 9th April, 2015.

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

----Ss. 22-A, 249-A & 265-K----Constitution of Pakistan, Art.199---Constitutional petition---Registration of criminal case---Powers of Justice of Peace---Scope---Justice of Peace, in exercise of powers under S.22-A, Cr.P.C., had directed the S.H.O. concerned to register the FIR against the petitioners and others as a cognizable offence, seemed to have been committed by the petitioners---Said order had been passed by the Justice of Peace in accordance with law, keeping in view the allegations levelled against the petitioners, leading to a cognizable offence committed by the person mentioned therein---S.H.O. of the concerned Police Station, was bound under the law to register a case under the relevant section of law---Even otherwise the questions urged by the counsel for the petitioners, being contentious, were essentially one of facts, requiring recording of evidence, with which, the court competent to try the petitioners, could deal, either during the trial or through an application under S.249-A or 265-K, Cr.P.C.---No jurisdictional defect having been found in impugned order, passed by Justice of Peace, which could justify interference of High Court in exercise of its constitutional jurisdiction, constitutional petitions were dismissed, in circumstances.

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

----S. 22-A(6)(i)---Order passed by Justice of Peace---Scope---Any order passed by the Justice of Peace, was not a judicial order, and was of administrative and ministerial in nature---Justice of Peace had just to issue an appropriate direction to the Police Authorities on a complaint by any aggrieved person, regarding non-registration of criminal case as provided in S.22-A(6)(i) of Cr.P.C. and had nothing to do with the veracity and truthfulness of the allegations levelled in the complaint/application---If the facts and circumstances so alleged prima facie confirmed the commission of a cognizable offence and the Local Police, whatever the reason could be, was reluctant and avoiding the registration of FIR, then it had to issue such directions only---After registration of the case, investigation in the case, was the sole job of the concerned Police, and the Justice of Peace, had got no concern, whatsoever with the same---Since the society, in general, and the Police in particular, had a misconception regarding arrest of an accused after registration of criminal case and generally that authority, was very brutally misused, law on the issue was well settled and established--- Arrest of an accused, was not a statutory compulsion during investigation of the case, provided accused was cooperative with Police during investigation---Mere registration of the case, would not be a ground for arrest of accused during investigation---If accused was proved innocent during investigation, he could be dealt with in accordance with the provisions of Ss.169 & 173(3) of Cr.P.C.; and the complainant, could also be dealt with under S. 182, Cr.P.C.

Mukhtiar Hussain's case 2015 SCMR 1763 ref.

Ashfaq Ahmad Daudzai for Petitioner.

Kifayatullah Khan Shahab Khel and Syed Qaiser Ali Shah, AAG for Respondents.

Date of hearing: 9th April, 2015.

2016 P Cr. L J 250

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chammkani, JJ

MUHAMMAD KARIM---Appellant

Versus

ABD-U-SATTAR and another---Respondents

Criminal Appeal No.191-P of 2012, decided on 2nd June, 2015.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Dying declaration, sanctity of---Trial Court had recorded the conviction and sentence of accused on the sole ground of dying declaration of deceased, then injured---Sanctity was attached to the dying declaration because, a dying man, was not expected to tell a lie, but being weak kind of evidence, it required close scrutiny and corroboration---No amount of doubt existed about the capability of the deceased, then injured, to talk and being conscious---Only disturbing question was that whether the deceased, then injured, was in a position to identify the assailant at the time of incident---Report of the deceased, then injured, revealed that he did not utter a single word about any source of light, whether electric or natural (moon light) in which he identified the accused, as the incident took place at odd hours of the night---Site plan, nowhere showed that around the crime venue there was any source of light or was taken into possession by Investigating Officer during spot inspection---Deceased, then injured, was shown in the site plan, at a distance of 15 paces, which was a considerable distance, and in absence of any source of light, identification of the assailant from such a distance, was next to impossible---Not appealing to mind that an assailant who selected the odd hours of the night for offence, would disclose his identity before his target---Trial Court had not furnished any reason, much less plausible, in support of point of identification, rather had given much stress on the physical condition of the deceased, then injured, that he was capable to talk as per statement of the Doctor---No piece of evidence was available to remove serious reservations about identification of accused by the deceased, then injured, in the dark hours of the night---Though the deceased, then injured, was in a position to talk, but not in a position to identify the assailant---If, identification of the assailant was excluded from the consideration, the whole edifice of the prosecution case would crumble to the ground---No other direct evidence, was available with the prosecution---Mere recovery of blood from the spot, blood-stained garments of the deceased, coupled with the report of serologist and autopsy report, being corroborative piece of evidence, would not be sufficient to bring home the guilt of accused---Identification of accused, being highly doubtful, cast serious doubts in the prosecution case, benefit of which would be extended to accused not as a matter of grace or concession, but as a matter of right---Trial Court had not evaluated the dying declaration of the deceased, then injured, in its true perspective, court had reached to an erroneous conclusion by holding accused guilty of the offence---Allowing appeal, sentence of accused recorded and awarded by the Trial Court, vide impugned judgment, were set aside and accused was acquitted of the charges levelled against him, and he was set at liberty, in circumstances.

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

----Art. 46---Dying declaration---Determination of genuineness and reliability Test---Main test or points for determination of genuineness of dying declaration were that whether the maker had the physical capacity to make the dying declaration; that whether the maker had opportunity to recognize the assailant; that whether there were chances for mistake on the part of dying man in identifying and naming the assailant; that whether it was free from prompting from any outside quarter; that whether the witness, who heard the deceased making his statement, heard him correctly and that whether their evidence could be relied upon---In order to pass the test of reliability, a dying declaration had to be subjected to a very close scrutiny, keeping in view the fact that the statement, had been made in the absence of accused, who had no opportunity of testing the veracity of the statement by cross-examination---Once the court would come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identification of the assailant of the victim, there was no question of further corroboration.

(c) Criminal trial---

----Benefit of doubt---Scope---Rule of benefit of doubt, was essentially a rule of prudence, which could not be ignored, while dispensing justice in accordance with law---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of accused---Said rule was based on the maxim "It was better that ten guilty persons be acquitted, rather than one innocent person be convicted", which occupied a pivotal place in the Islamic Law and was enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal, was better than his mistake in punishing an innocent."

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Ikram v. The State 2009 SCMR 230 rel.

Jalal-ud-Din Akber Azam Gara for Appellant.

S. Sikandar Hayat Shah, AAG for the State.

Date of hearing: 2nd June, 2015.

2016 P Cr. L J 272

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Qalandar Ali Khan, J

AMIR GHAZAN---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and 3 others---Respondents

Writ Petition No. 258-P of 2015, decided on 8th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Corruption and corrupt practices---Bail, refusal of---Plea of accused for bail on merits had been rejected twice by High Court; at the pre-arrest stage and later at the post arrest stage---Only development, which had taken place in the meantime, was the 'Plea Bargain' of co-accused---Belated somersault of co-accused by taking entire blame on him and intriguingly extending concession to accused, his brother-in-law, at that critical juncture, when charge against accused was shortly to be framed by the Trial Court, raised many questions, which could not be resolved at the bail stage, requiring scrutiny at the trial stage--- Material placed on record by NAB, prima facie, connected accused with the offence---Delay in conclusion of trial, apart from the obvious fact of shuttling of the case in different courts, owing to incessant petitions of accused; and other co-accused, rendered commencement of the trial next to impossible---Plea with regard to delay, too was raised earlier, not only by accused, but also co-accused, which was not accepted on the ground that prosecution was not responsible for the delay; but accused and co-accused, were to share the blame to greater extent---No justification existed to admit accused on bail, when framing of charge, was scheduled within a weak or so after receipt of the record by the Trial Court---Bail was refused.

Qazi Jawad Ehsanullah and Barrister Syed Mudassir Amir for Petitioner.

Muhammad Jamil Khan, DPG and Umar Farooq, ADPG, NAB for Respondents.

Date of hearing: 8th April, 2015.

2016 P Cr. L J 297

[Peshawar]

Before Qaiser Rashid Khan, J

NAZAR GUL---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. (B.A.) No. 1058-P of 2015, decided on 14th July, 2015.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to qatl-i-amd, common intention---Bail, grant of---Further inquiry---Discriminate firing---Recovery of empties---Forensic science report in contradiction to FIR---Accused were alleged to have murdered two brothers of complainant---Similar role of discriminate firing had been attributed to accused and absconding co-accused, but only five empties of thirty-bore weapon along with a spent bullet had been recovered from spot---Forensic Science Report, revealed that all said five empties had been fired from one and same thirty-bore weapon, which gave rise to the question as to whether one or more persons had fired at the victims---Said factor alone made case one of further probe and made accused entitled to concession of bail--- Bail applications were allowed accordingly.

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

----S. 497(2)---Bail---Principles---Court, at bail stage, cannot go into deeper discussion on merits of case---Only tentative assessment of available record is to be kept in view while disposing of bail petition.

Hussain Ali for Petitioner.

Syed Sikandar Hayat Shah, AAG for the State.

Muhammad Ijaz Khan Sabi for the Complainant.

Date of hearing: 14th July, 2015.

2016 P Cr. L J 310

[Peshawar]

Before Nisar Hussain Khan and Qalandar Ali Khan, JJ

ASGHAR SAEED and another---Petitioners

Versus

JUSTICE OF PEACE/SESSIONS JUDGE PESHAWAR and 3 others---Respondents

W. P. No. 1275-P of 2014, decided on 31st March, 2015.

Emigration Ordinance (XVIII of 1979)---

----Ss. 18(b) & 22(b)---Penal Code (XLV of 1860), S.109---Criminal Procedure Code (V of 1898), Ss.154 & 156---Constitution of Pakistan, Art. 199--- Constitutional petition--- Maintainability--- Fraudulently inducing persons to emigration abroad for purpose of securing employment, abetment---Registration of FIR and conducting enquiry---Inquiry Officer, in his comments filed in the Trial Court, had stated that in view of inquiry conducted by him, no criminal case was made out, warranting registration of FIR, but the comments would reveal that instead of conducting inquiry as Inquiry Officer, he assumed the role of a court by discrediting the proof brought before him by the complainant---Once commission of a cognizable offence was reported, SHO of Police Station concerned was under legal obligation to register FIR, without first embarking an enquiry, notwithstanding the fact that procedure of Federal Investigating Agency, was a bit different; and inquiry was conducted prior to registration of the case---Once case was registered, then investigation was conducted under the law; and accused, invariably, had the opportunity to put forth his defence/case to the Investigating Officer, who under the law, was even authorized to move for release of accused and cancellation of FIR; if after investigation the charge was proved false; and could also initiate criminal proceedings against the complainant for lodging a false and baseless report---In addition to the said remedy during investigation, even if challan was submitted against accused, he still had another chance of putting up defence against the case of prosecution by proving the case false; and thereby securing his acquittal in the case---Constitutional petition, was not maintainable, in view of availability of other adequate remedies to the petitioner---Petition was dismissed, accordingly.

Shah Faisal Utmankhel for Petitioners.

Syed Abdul Fayaz for Respondents.

Date of hearing: 31st March, 2015.

2016 P Cr. L J 373

[Peshawar]

Before Assadullah Khan Chammkani and Syed Afsar Shah, JJ

MUHAMMAD YOUSAF and another---Appellants

Versus

The STATE---Respondent

Cr. A. No.377-P of 2011, decided on 10th April, 2014.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 512---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Abscondence---Testimony of closely related witnesses could be relied upon if same was confidence inspiring and was corroborated by circumstances of the case---Distance between Police Station and place of occurrence was 2-1/2 Kms which could be covered within 30 minutes but FIR was lodged by a delay of one hour and 15 minutes---Complainant was not likely to face hurdle to shifting the dead body to Police Station or hospital as occurrence took place when marriage ceremony was going on nearby---Complainant could specify the firearm used by accused despite the fact that she had deposed that she could differentiate various kinds of firearms---Had complainant been present on the scene, she would have mentioned the particular firearm---Investigating Officer contradicted complainant's stance as to the direction in which complainant and her sister were proceeding---Witnesses introduced by complainant neither gave statements to Police nor testified in court---Statements of guests attending the marriage ceremony was not recorded by Investigating Officer to show that complainant and her sister attended the marriage---Any invitation card of said marriage was not taken in possession by Investigating Officer---Complainant failed to prove her presence on the spot---Statements of witnesses suffered material contradictions--- Oral account was not supported by medical evidence---Eye-witness mentioned in FIR was given up without good reason---Adverse inference would be drawn against prosecution within meaning of Art.129(g) of the Qanun-e-Shahadat, 1984---No crime empty was recovered from scene---Men could lie but circumstances could not; every human narration had to be checked on the touchstone of circumstances and with reference to normal human conduct---Ocular evidence of complainant and her sister was inconsistent with medical evidence and other circumstances---Prosecution was bound to prove its case beyond reasonable doubt---Any reasonable doubt pricking the judicial mind was sufficient for acquittal of accused---In case of doubt, benefit must go to the accused as matter of right and not of grace---Accused persons had remained absconders but prosecution could not seek support from factum of abscondence when prosecution had failed to prove the guilt of accused through direct evidence--- Mere absconscion was not conclusive proof of guilt of accused person---Abscondence was a relevant fact but same has to be read with substantive piece of evidence---Appeal of accused was accepted; they were acquitted of the charges in circumstances.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

(b) Criminal trial---

----Benefit of doubt---Ten guilty persons be acquitted than one innocent person be convicted.

Ishtiaq Ibrahim for Appellants.

Mujahid Ali Khan, A.A.G. for the State.

Date of hearing: 10th April, 2014.

2016 P Cr. L J 402

[Peshawar]

Before Muhammad Younis Thaheem, J

Malik HAKIM KHAN---Petitioner

Versus

The STATE and others---Respondents

Cr. M.Q. No. 66-A of 2014, decided on 22nd December, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 4(1)(t), 61, 167 & 492---Penal Code (XLV of 1860), S. 365---Kidnapping or abduction with intent secretly and wrongfully to confine person---Dismissal of application for Police remand---Petition under S. 561-A, Cr.P.C. for quashing of order---Respondents/accused persons against whom case under S.365, P.P.C., was registered; were arrested by Local Police and were produced before Judicial Magistrate---Remand sought by Police, was refused by Magistrate and accused persons were remanded to judicial custody---Revision petition filed by the petitioner/complainant before Additional Sessions Judge against order of the Magistrate was dismissed---Validity---Only District Public Prosecutor, would be competent to apply on behalf of the State and Police custody of accused persons---Private pleader instructed by a private party, would not be permitted to conduct the prosecution, as had been done in the present case---Advocate General or any other person conducting prosecution on behalf of the State, would be competent to apply for Police remand of accused persons---Material collected by the prosecution and placed before the Magistrate at time of seeking Police remand of accused persons was not sufficient to create suspicion regarding their involvement in the commission of the offence---Alleged abductee remained in contact with his brothers---Order of the Magistrate, refusing custody of accused persons to Police, in the peculiar facts and circumstances of the case, was legally justified---No case for interference by High Court in the impugned orders in the exercise of its inherent jurisdiction under S.561-A, Cr.P.C., was made out.

2004 YLR 447; The State v. Wazir Khan PLD 1968 Pesh. 140; Senator Asif Ali Zardari v. The State 1999 YLR 2620; Ghulam Sarwar and another v. The State 1984 PCr.LJ 2588; Muhammad Hayat and another v. The State 1969 PCr.LJ 786; Misbah-ul-Hasan v. The State 2005 PCr.LJ 1709; Riaz-ul-Haq and another v. The State 2005 YLR 805 and Abul Hassan v. The State and others 1969 SCMR 215 ref.

Shad Muhammad Khan for Petitioner.

Raja Zubair, DAG, Muhammad Naseem Khan Swati and Sultan Ahmad Jamshed for Respondents.

Date of hearing: 22nd December, 2014.

2016 P Cr. L J 420

[Peshawar]

Before Qalandar Ali Khan, J

FARHAT NASEEM and others---Petitioners

Versus

The STATE and others---Respondents

Cr. M. No. 437-A of 2015, decided on 28th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, common object---Bail, grant of---Further inquiry---Six members of a family were charged for only three firearm entry wounds on the deceased at night time; without assigning specific role in the FIR to any of the accused persons---Load shedding schedule and plea of alibi taken by accused, though were not relevant facts at the bail stage, but once such grounds were taken by the defence, Investigating Officer must probe in to such facts; alleged during the investigation; either to confirm or contradict the same---Investigating Officer in the case did not seem to embark an such an exercise, which was essentially required for completion of investigation, which had made the case for further inquiry---Negative report of the Firearms Expert, non-recovery of anything incriminating from the other co-accused; and no investigation to prove moon-light in the night of occurrence; and light of electric bulb on the spot at the time of occurrence, would further render case against accused persons that of further inquiry---Investigation in the case was complete, and complete challan against accused persons had been submitted---Accused persons, were no longer required for the purpose of investigation, thus making accused persons entitled to the concession of bail, especially when bail could not be withheld as punishment---Accused, were admitted to bail, in circumstances.

Atif Khan for Petitioners.

Raja Muhammad Babar Assistant Advocate-General for the State.

Fazal-e-Haq Abbasi for the Complainant.

Date of hearing: 28th September, 2015.

2016 P Cr. L J 437

[Peshawar]

Before Haider Ali Khan, J

RAFIULLAH---Petitioner

Versus

ADDITIONAL ADVOCATE-GENERAL, PESHAWAR HIGH COURT BENCH MINGORA/DARUL QAZA, SWAT and another---Respondents

Quashment Petition No. 11-M of 2015, decided on 31st July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 516-A--- Supardari--- Original case property--- Scope---Police inquiry report and the record of concerned Motor-Vehicle Registration Authority showed that petitioner was the owner and last possessor of the vehicle in question and department denied the verification of transfer letter of vehicle produced by the respondent as it was only a blank letter---Petitioner produced a sale deed of the vehicle before the police, who recorded statements of last two owners of the vehicle in question, who backed the petitioner's version---Prima facie, petitioner was entitled to the custody of the vehicle, however, question of title was still disputed as it could not be determined by the court while exercising powers under S. 516-A, Cr.P.C.---Petition under S. 516-A, Cr.P.C. was allowed accordingly.

Kadirmind v. The State and another 1998 SCMR 2542 and 1992 SCMR 1454 rel.

Akhtar Munir Khan for Petitioner.

Fazal Malik and Sabir Shah, A.A.-G. for Respondents.

Date of hearing: 31st July, 2015.

2016 P Cr. L J 454

[Peshawar]

Before Qalandar Ali Khan, J

WASEEM BASHIR---Petitioner

Versus

The STATE and others---Respondents

Cr. M. No. 404-A of 2015, decided on 3rd September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.377 & 511---Sodomy, attempt to commit offences punishable with imprisonment for life---Bail, refusal of---FIR, wherein accused was directly charged for despicable act, had been lodged by the father of the victim (aged 5/6 years) with utmost promptitude---Apart from the fact that no parents would bring such a nasty charge about their minor child where there was not even a distant suggestion to impute mala fide to the parents of the child of very tender age; the eye-witnesses account of the mother of the victim, corroborated by the two persons mentioned in the FIR, together with medical report showing redness around anal canal; and the mucosal tear, was overwhelming evidence to prima facie connect accused with the commission of offence---Negative report of Forensic Science Laboratory would have no significance, where there was no allegation of penetration and ejaculation---No reason existed to extend the concession of bail to accused, petition was dismissed.

2000 PCr.LJ 313; 2007 SCMR 698; 2009 PCr.LJ 978 and 2000 PCr.LJ 33 ref.

Masood ur Rehman Tanoli for Petitioner.

Muhammad Naeem Abbasi, A.A.G. for the State.

Waheed Jan Muhammad for the Complainant.

Date of hearing: 3rd September, 2015.

2016 P Cr. L J 473

[Peshawar]

Before Qalandar Ali Khan, J

MUHAMMAD IRSHAD---Petitioner

Versus

The STATE and others---Respondents

Cr. M. No. 303-A of 2014, decided on 14th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, cancellation of---Accused was released by the Trial Court only on medical ground---Medical Board in its report had advised coronary artery bypass graft (CABG)---Trial Court on the basis of said report held that accused was a serious heart patient and known diabetic; and had a right of treatment from a Doctor/hospital of his own choice---Trial Court, had dealt with bail application of accused in a slipshod and cursory manner; as court totally overlooked the other material and relevant aspects of the case; such as serious charge of qatl-i-amd against accused; and his remaining fugitive from law for more than a decade before his arrest---Accused, did not qualify for release on bail on medical ground for the reason that in the report of Medical Board, it was nowhere mentioned that true ailment of accused namely, diabetes and cardiac problem posed danger to life of accused---Treatment for diabetes was available everywhere, even in jail---No record of treatment or any procedure for a 'serious' heart ailment was available prior to arrest of accused; and his application for post arrest bail; even during period of his absconsion for more than ten years---Record was also silent about any treatment or 'CABG' by accused after his release on bail---Only conclusion which could be drawn, was that medical ground was coined by accused to get himself released from jail, which was facilitated by the court---Impugned order of granting bail to accused, was arbitrary, perverse and capricious calling for interference by High Court---Trial in the case of accused had commenced---Jail Authorities were directed to make arrangement for treatment/medical facilities in the jail--- Impugned order of the Trial Court granting bail to accused was set aside, bail granted to accused, was cancelled and accused was directed to be taken into custody, in circumstances.

2010 SCMR 576; 2010 SCMR 605; 1998 PCr.LJ 763; 2010 PCr.LJ 921 and 2014 PCr.LJ 1526 ref.

Muhammad Nawaz Khan Swati, Amjad Ali Mughal and Sardar Muhammad Asif for Petitioner.

Muhammad Naseem Khan Swati for Respondent.

Ayesha Nayab Gul for the State.

Date of hearing: 14th September, 2015.

2016 P Cr. L J 513

[Peshawar]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

ABDUL KARIM---Appellant

Versus

KHALIQ JAN and another---Respondents

Criminal A. No. 321-P of 2007, decided on 28th October, 2015.

(a) Criminal trial---

----Confession--- Retracted confession--- Scope--- Conviction of an accused can rightly be based on his retracted confession if court is satisfied that accused voluntarily recorded the same.

Muhammad Amin v. State PLD 2006 SC 219; PLD 1960 SC (Pak.) 313 and Manjeet Singh v. The State PLD 2006 SC 30 rel.

(b) Criminal trial---

----Evidence---Child witness---Scope---Child can be a good witness provided he is capable of understanding and able to give rational answers to questions put to him.

Maqsood Khan v. The State 1982 SCMR 757 rel.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd and terrorism---Appeal against acquittal---Appreciation of evidence---Double murder---Evidence of child witness---Retracted confession---Accused was acquitted by the Trial Court by disbelieving prosecution evidence in a case where two persons were murdered---Validity---Medical reports available on record fully corroborated prosecution case---Injuries sustained by male deceased on front side of his body corroborated statement of an eye-witness, similarly, injuries sustained by female deceased on backside of her body corroborated site plan as well as story depicted in FIR---Forensic Science Laboratory reports, regarding blood-stained earth/sand collected from two spots of occurrence and blood-stained clothes of two deceased, was in positive which further strengthened prosecution version---Witnesses of recovery memos prepared in such regard by Investigating Officer were consistent in their deposition and their testimony was intact despite lengthy cross-examination---Both sets of recovery memos, i.e., Kalashnikov and empty shells were examined through Forensic Science Laboratory which report was available on record---According to the report of Forensic Science Laboratory, 14 empty shells from two spots of occurrence were fired from 7.62 mm bore SMG rifle which was recovered at the behest of accused---Such evidence fully supported prosecution case which should have been considered by Trial Court---Conduct of accused did not conform to the ordinary course of nature as in case of murder of his wife, at whosoever hand and for whatever reason, he neither lodged FIR nor took his deceased wife to hospital---Such was a relevant fact for drawing an adverse inference---Prosecution had proved its case beyond any shadow of doubt against accused and Trial Court did not properly appreciate evidence available on record---Statement of child witness coupled with retracted confession, though corroborated on material points, was a mitigating circumstance for not awarding capital punishment to accused---High Court set aside judgment of acquittal passed by Trial Court and convicted the accused under S. 302(b), P.P.C., and sentenced him to imprisonment for life--- Appeal was allowed in circumstances.

Muhammad Basharat v. The State and another 2003 SCMR 554 ref.

Arbab Aziz Ahmad for Appellant.

Khwaja Salahuddin for Respondent.

Rafiq Ahmad, A.A.-G. for the State.

Date of hearing: 28th October, 2015.

2016 P Cr. L J 541

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

SHER ZAD KHAN and another---Appellants

Versus

Mst. ZULEKHA and another---Respondents

Criminal Appeal No.52-B of 2012, decided on 26th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-F(ii)--- Qanun-e-Shahadat (10 of 1984), Art.129(g)--- Qatl-i-amd, ghayr-jaifah, badiah---Appreciation of evidence---Benefit of doubt---Abscondence---Two hours' delay in F.I.R. was not explained plausibly which showed that complainant did not know accused and took time for deliberations and consultations to nominate the accused for offence---Complainant made dishonest improvements qua presence of accused persons and that of her own family members---Neither site-plan showed position of family members of deceased nor Investigating Officer recorded their statements or produced them before court---Site-plan negated version of complainant---Complainant deposed that she did not know the number of shots fired by the accused and could not tell whether she and her daughter were sitting on the cot or on the ground, but strangely enough, she remembered that her daughter was at a distance of 3/4 paces from her but could not tell whether her daughter was sitting or standing when said daughter received injury---Complainant claimed to have been an eye-witness but she did not remember material facts and circumstances---Material contradictions and improvements in complainant story created serious doubts as to her presence at the place of occurrence---Medical evidence belied ocular account---Complainant stated that distance between accused and deceased was 2 to 3 paces but no blackening marks were found by the Medical Officer---Prosecution was bound to prove its case beyond any reasonable doubt---Where slightest doubt was created, accused was entitled to acquittal---Accused was favourite child of law, benefit of doubt must go to the accused regardless of the fact whether accused had taken any such plea or not---Daughter of deceased, the other witness, was given up on ground of mental illness but no medical certificate was produced to that effect---Said daughter was injured witness and deposed against complainant version; her non-production amounted to withholding best available evidence---Under Art.129(g) of the Qanun-e-Shahadat, 1984 adverse inference would be drawn against prosecution---Direct/oral evidence of prosecution having been disbelieved, pieces of circumstantial evidence would not be sufficient to prove the guilt of accused---In the absence of recovery of crime weapon, evidentiary value of empties diminished---Prosecution could not seek support from factum of abscondence of accused where eye-witnesses could not establish their presence on the spot---Mere absconscion was not conclusive proof of guilt of accused person as accused could run away due to fear--- Abscondence was relevant fact but same had to be read with substantive piece of evidence--- Accused was acquitted, in circumstances.

Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Faryad Ali's case 2008 SCMR 1086; Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

M. Anwar Khan Maidad Khel for Appellants.

Saifur Rehman A.A.-G. for the State.

Anwar-ul-Haq for the Complainant.

Date of hearing: 26th March, 2014.

2016 P Cr. L J 568

[Peshawar]

Before Assadullah Khan Chamkani, J

Haji BASHIR KHAN---Appellant

Versus

REHMAT GUL and 3 others---Respondents

Criminal Appeal No. 111-P of 2015, decided on 26th October, 2015.

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

----Ss. 457, 324 & 34---Criminal Procedure Code (V of 1898), S. 417---Attempt to commit qatl-e-amd; lurking house-trespass or house-breaking at night after preparation for hurt, assault or wrongful restraint; common intention---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Complainant gave two versions of same occurrence---Effect---Witnesses not mentioned in FIR, testimony of---Admissibility---Accused were alleged to have entered into house of complainant and caused injuries on his body by fire shots, due to monetary dispute---Trial court, extending benefit of doubt, acquitted the accused---Alleged incident was nocturnal; whereas, no source of light had been disclosed by complainant in his report, nor had any such source been noticed or taken into possession by Investigating Officer during spot inspection---Identification of the assailants from distance of 16 to 19 paces in dark, by injured complainant, who was under attack of firing by three assailants, did not appeal to mind---Said sole and material doubt, qua identification of accused, would be sufficient to crumble the entire edifice of prosecution case---Complainant had given two different versions of alleged incident as to place of occurrence, number of victims of firing and specific kind of weapons used by each accused---Subsequent and afterthought version of complainant amounted to dishonest improvement just to bring his case in line with recovered empties---Time of medical examination of complainant was twenty minutes prior to time of reporting of alleged incident, which created doubt in prosecution case---Name of eyewitness was not mentioned in FIR, and the same had been introduced later on---Testimony of prosecution witness, not mentioned in the FIR, but introduced subsequently, had no evidentiary value---Many circumstances existed in the prosecution case, which had created serious doubts, and benefit of which had rightly been extended to the accused by trial court---No infirmity was found in impugned judgment---Appeal against acquittal was dismissed in circumstances.

Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152 rel.

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

----Ss. 410 & 417----"Appeal against conviction" and "appeal against acquittal"---Appraisal of evidence---Principles---Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction---Appraisal of evidence in case of an appeal against conviction is done strictly; in appeal against acquittal, such rigid method of appraisal is not to be applied, as there is already finding of acquittal given by trial court after proper analysis of evidence on record.

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

----S. 417---Appeal against acquittal---Scope---Scope of appeal against acquittal of accused is considerably narrow and limited.

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

----S. 417---Appeal against acquittal---Jurisdiction of appellate court---Scope---High Court is always slow in exercise of jurisdiction under S.417, Cr.P.C., unless it is found that gross injustice has been done in administration of criminal justice---Appellate court, while dealing with acquittal order, has to exercise jurisdiction cautiously, as accused enjoys double presumption of innocence: firstly, presumption of innocence available to him before conclusion of trial, and secondly, after verdict of acquittal in his favour---Court must be slow in reversing judgment of acquittal, unless the same is found to be arbitrary, fanciful and capricious on face of it, or the same is the result of bare misreading or non-reading of any material evidence.

(e) Criminal Trial---

----Hurt, offences of---Proof---Statement of injured, evidentiary value of---In hurt cases, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided the same is true and confidence inspiring, in view of its intrinsic worth---Mere stamp of injuries on person of witness would not be a proof of fact that whatever he deposes would be truthful account of the events---Veracity of such witness is to be tested from circumstances of case and his own statement whether the same fits in the circumstances of case or otherwise.

(f) Criminal Trial---

----Conviction, basis of--- Principles--- Strong evidence of unimpeachable character is required for recording conviction---Finding of guilt against accused must not be based on probabilities to be inferred from evidence, but the same must rest surely and firmly on tangible and concrete evidence; otherwise, the rule of benefit of doubt would be reduced to naught.

(g) Criminal Trial---

----Evidence, appraisal of---Courts, by means of proper appraisal of evidence, must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party.

(h) Criminal Trial---

----Benefit of doubt---Scope---Prosecution is bound to prove its case beyond any shadow of doubt---If any reasonable doubt arises in prosecution case, benefit of the same must be extended to accused, not as matter of grace or concession, but as of right---Many doubts do not need to exist in prosecution case; rather, any reasonable doubt arising out of prosecution evidence, pricking the judicial mind would be sufficient for acquittal of accused.

Faqir Hussain for Appellant.

Mian Arshad Jan, A.A.-G. for the State.

Br. Masood Kausar for the Respondents.

Date of hearing: 26th October, 2015.

2016 P Cr. L J 581

[Peshawar]

Before Waqar Ahmad Seth, J

IRFAN---Petitioner

versus

The STATE---Respondent

Cr. M. No. 190-P and Cr. Misc. B.A. No. 2231-P of 2015, decided on 11th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409, 419, 420 & 109---Anti-Money Laundering Act (VII of 2010), Ss.3 & 4---Criminal breach of trust by public servant or by Banker, merchant or agent, cheating by personation, cheating and dishonestly inducing delivery of property, abetment---Bail, grant of---Main allegation against accused was that he opened personal account, and used the same for commercial activities and exorbitant transactions had been made---Using of personal account for commercial business; and transaction of huge amount whether earned through illegal or legal means; and non-availability of NTU number on FBR Website; and acceptance of account Form by the Bank; and after closing of account by accused, referring the matter to Director FIA; all those material available on record, would be decided during trial after recording of evidence---Accused remained in custody for investigation, but no confession, had been brought on record---Investigation in the case was complete; and he was no more required to the prosecution---Keeping accused in judicial lock up, would serve no useful purpose---Accused was ordered to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Muhammad Safdar Khan Standing Counsel for the State.

Date of hearing: 11th December, 2015.

2016 P Cr. L J 593

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD YOUNAS---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 2162-P of 2015, decided on 4th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.4 & 23---Indulging in business of hundi hawala---Bail, grant of---Punishments of the offences with which accused was charged, did not fall within the restrictive limb of S.497, Cr.P.C.---In such like cases bail was a rule and refusal an exception---No exceptional circumstance existed to obstruct the way of bail to accused---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

F. M. Sabir for the State.

Date of hearing: 4th December, 2015.

2016 P Cr. L J 606

[Peshawar]

Before Muhammad Daud Khan, J

MUHAMMAD SHAH KHESRO and another---Appellants

Versus

The STATE and others---Respondents

Cr. A. No. 108-M of 2015, decided on 2nd November, 2015.

(a) Police Rules, 1934---

----R.25.2---Police Order (22 of 2002), Art. 18---Honest investigation---Scope---Investigating Officer is not required to commit himself prematurely to any view of facts for or against any person---Such cannot be expected from an investigating officer who himself is a party---Concept of honest investigation is based on non-partisanship and neutrality---Reason and spirit of separating investigation wing from operation wing of police also emanates from the same fact which reflects in Art. 18 of Police Order, 2002.

2009 PCr.LJ 1334; Nazir Ahmad v. The State PLD 2009 Kar. 191; Ashiq alias Kaloo v. State 1989 PCr.LJ 601 and State v. Bashir and others PLD 1997 SC 408 rel.

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

----Art. 129(g)---Withholding of evidence---Presumption---If a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing that evidence.

Darwesh and others v. The State 2014 YLR 2233 rel.

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

----Ss. 5 & 6---Explosive substance, recovery of---Appreciation of evidence---Incriminating articles, non-production of---Effect---Benefit of doubt--- Prosecution alleged that explosive material was recovered from a vehicle being driven by accused---Trial Court convicted accused and sentenced him to imprisonment for five years---Validity---Vehicle, from which alleged explosive materials were recovered, was not produced in Trial Court for exhibition---Non-production of case property threw doubts on the credential of prosecution story, which rendered foundation of case shaky on the basis of which conviction and sentence passed by Trial Court could be sustained---Prosecution case was full of doubt and material contradictions, the benefit of which would go to accused---For creating doubt, single circumstance was sufficient and not many circumstances were required---Prosecution failed to prove its case against accused beyond shadow of reasonable doubt and Trial Court did not appreciate prosecution evidence in its true perspective and had erred in convicting accused persons---High Court set aside the conviction passed by Trial Court and acquitted the accused of the charge---Appeal was allowed in circumstances.

Aala Muhammad and another's case 2008 SCMR 649 ref.

Said Muhammad v. The State 2009 PCr.LJ 604 rel.

(d) Criminal trial---

----Confession---Exculpatory confessional statement of co-accused which is not proved by prosecution is not sufficient to record conviction.

Said Muhammad v. The State 2009 PCr.LJ 604 rel.

Syed Abdul Haq and Aurangzeb for Appellants.

Faheem Naeem for the State.

Date of hearing: 2nd November, 2015.

2016 P Cr. L J 622

[Peshawar]

Before Ikramullah Khan, J

ZAHIR SHAH---Petitioner

Versus

MUHAMMAD SHER KHAN, SHO PS MIRIAN and another---Respondents

Cr. Misc. Bail Petition No. 275-B of 2015, decided on 20th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Khyber Pakhtunkhwa Explosive Substances Act (XXV of 2013), Ss. 15-AA & 5---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss. 3(i)(a)(iv) & 15(e)--- Penal Code (XLV of 1860), Ss. 506, 186 & 71---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(ee), 7(ff) & Third and Fourth Sched.---Making or possession of explosives under suspicious circumstances; manufacture etc. of intoxicants; owning or possessing intoxicants; obstructing public servant in discharge of public functions; criminal intimidation, unlicensed possession of arms and terrorism---Bail, grant of---Further inquiry---Kalashnikov with loaded magazines, a .30 bore pistol with magazines, three hand grenades and eight plastic drums containing 240 liters of wine were alleged to have been recovered from possession of the accused---Additional Sessions Judge refused bail after arrest on ground that offences in question were exclusively triable by the Anti-Terrorism Court---Offence of unlawful possession of explosives as defined under Anti-Terrorism Act, 1997, fell within S. 6(2)(ee) of the said Act, which was punishable under S. 7(ff) of the Act, wherein, punishment provided would not be less than 14 years, but the same might extend to imprisonment for life---Accused, however, had not been charged under S. 7(ff) of the said Act---Offences mentioned in Item 4 of the Third Sched. of Anti-Terrorism Act, 1997 would be exclusively triable by the Anti-Terrorism Court, but mere having any unlawful explosives was not included in Item 4 of the Third Sched.---Offences, allegedly committed by the accused, did not occupy any place within the purview of the Item 4 of the Third Schedule---Section 3(i)(a)(vi) of Khyber Pakhtunkhwa Arms Act, 2013 included grenade within the definition of ammunition---Explosive grenades were not directly recovered from the exclusive possession of the accused, nor on his pointation---Search of the joint house of the accused, from where the explosive substances etc. were allegedly recovered, had not been made in presence of private witnesses---Mere recovery of any alleged explosive substance, without expert opinion, would not withhold the concession of bail---High Court could not bypass the provisions of S. 71, P.P.C., under which there was likelihood, that the accused, even if found guilty, would be extended the benefit of said section, which made present case one of further inquiry, as no other offence committed by the accused fell within the prohibition clause of S. 497, Cr.P.C.---Bail application was accepted accordingly.

Ihsanullah v. The State PLD 1995 Pesh. 106 rel.

Sultan Mehmood Khan for Petitioner.

Qudrat Ullah Khan Gandapur, A.A.-G. for the State.

Date of hearing: 20th November, 2015.

2016 P Cr. L J 657

[Peshawar]

Before Haider Ali Khan, J

AJAB KHAN and another---Appellants

Versus

STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No.158 of 2015, decided on 17th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 496-A, 496-B & 34---Enticing or taking away or detaining with criminal intent a woman, common intention---Appreciation of evidence---Prosecution version was that accused enticed away co-accused for the purpose of illegal marriage, despite the fact that Nikah of co-accused had already been effected with another person through Nikahnama---Alleged Nikahnama, had neither been signed or thumb impressed by the alleged husband of co-accused, nor by the co-accused---Purported Nikahnama, did not bear signature or thumb impression of alleged wali/attorney, who allegedly obtained consent of co-accused---Said Nikahnama was on a plain paper, and same did not carry signature or thumb impression of the witness---Prescribed Nikah Form was not used, nor the same was registered by the authority concerned--- Status of alleged Nikahnama had become highly doubtful---Female (co-accused), according to prosecution version was 13/14 years of age at the time of alleged Nikah---No authentic document was on record to show her exact age---Accused persons had contracted marriage and out of said wedlock they had an offspring---Status of previous Nikah having already been held as doubtful, said offspring could not be left at the mercy of the society---Co-accused had a decree for dissolution of her marriage with her previous husband by exercising her right of puberty---Both accused persons (male and female) being adult had exercised their option to get married which was not prohibited by law---Impugned judgment of the Trial Court, was set aside, accused were acquitted of the charge levelled against them and were released, in circumstances.

Mian Muhammad Riaz for Appellants.

Sabir Shah, A.A.-G. for the State.

Mukaram Shah for the Complainant.

Date of hearing: 17th December, 2015.

2016 P Cr. L J 681

[Peshawar]

Before Muhammad Daud Khan, J

AZIZ ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. M. B.A. No.420-M of 2015, decided on 10th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), S. 302---Karo Kari (honour killing)---Bail, refusal of---Compromise---Scope---Accused killed his real sister and her alleged paramour by firing with pistol and sought bail on the plea of compromise with legal heirs of deceased---Validity---Provision of S. 302, P.P.C. was compoundable but according to S. 345, Cr.P.C. in case of 'Karo Kari' (Honour killing), S. 302, P.P.C. was not declared as compoundable---Offence with which accused was charged fell under prohibitory clause of S. 497, Cr.P.C.---Trial against accused had commenced and most of prosecution witnesses had been examined and it would conclude in near future---Bail was refused in circumstances.

Qazi Farid Ahmad for Petitioner.

Sabir Shah, A.A.-G. for the State.

Date of hearing: 10th November, 2015.

2016 P Cr. L J 686

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

ABDUL WAHAB---Appellant

Versus

The STATE---Respondent

J. Cr. A. No.152-A of 2010, decided on 13th May, 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---Benefit of doubt---Report was lodged after more than 6 hours of the occurrence---Lodging of report with considerable delay, in the hospital on arrival of the Police, instead of, at the Police Station where the dead body was taken in the first instance, and then brought therefrom to the Hospital had created serious questions about credibility of the FIR---Complainant, admittedly was himself a proclaimed offender in a criminal case---Version of accused rang true to the extent that the Kalashnikov was snatched by him from the complainant during scuffle, and was voluntarily handed over by him to the Investigating Officer at the time of his arrest---Only eye-witness mentioned in the FIR was abandoned by the prosecution---Said witness had not only made pointation of the spot to the Investigating Officer, but had also recorded statement under S.164, Cr.P.C., during investigation---Wife of complainant, who was not mentioned as eye-witness in the FIR, was produced as an eye-witness, she was an interested witness---Doubt had been created about the scene of occurrence---Serious discrepancies in the prosecution case had demolished the edifice of the prosecution case, which was replete with doubts---Prosecution, must prove its case beyond any shadow of doubt, as benefit of a single doubt, must go to accused---Prosecution had not been able to establish its case and bring charge against accused---Impugned conviction and sentence of accused recorded by the Trial Court under S.302(b), P.P.C., were set aside and he was set at free.

Shad Muhammad Khan for Appellant.

A.A.-G. for the State.

Muhammad Wajad Khan for the Complainant.

Date of hearing: 13th May, 2015.

2016 P Cr. L J 709

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

MIR QAD AYAZ---Petitioner

Versus

SABIR KHAN and another---Respondents

Cr. R. No. 6-B of 2015, decided on 9th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Transposing statement of witness to a subsequent trial---Scope---Trial Court allowed application for shifting the statements of the prosecution witnesses (police officials), who were already dead and that of the complainant, who was absconder in other criminal cases, recorded in previous trial against the acquitted co-accused---Accused had raised objection only to the extent of shifting of said statement of the complainant---Validity---Section 512, Cr.P.C. could be read in conjunction with Art. 47 of Qanun-e-Shahadat, 1984---Keeping in view the provision of Art. 47, deposition of a witness would be relevant in subsequent proceedings only if the adverse party in the first proceedings had the right and opportunity to cross-examine the witness---Complainant had appeared as witness in the previous trial against the co-accused, but he had not been properly cross examined on account of compromise effected between the then accused and the complainant---Under S. 512, Cr.P.C., however, no legal restriction could be placed on transposing the statement of a witness to the subsequent trial---No apprehension existed that the accused would be prejudiced by merely transposing of said deposition---Admissibility and evidentiary value of said statement of the complainant would be adjudged by the Trial Court---Revision petition was, therefore, dismissed accordingly.

Amjad Ali and another v. The State and another 2013 PCr.LJ 282 and Sohail v. The State and another PLD 2014 Pesh. 189 ref.

Arbab Tasleem v. The State PLD 2010 SC 642 rel.

Iftikhar Ahmad Khan Durrani for Petitioners.

Syed Fakhr-ud-Din Shah for Respondent.

Saif-ur-Rehman, Additional A.G. for the State.

Date of hearing: 9th December, 2015.

2016 P Cr. L J 730

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J.

MUHAMMAD SAEED KHAN and others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. B.A. No. 2212-P of 2015, decided on 25th January, 2016.

Criminal Procedure Code (V of 1898)--

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Accused persons, who were in jail since 11-11-2015, for alleged recovery of total 2400 grams of "charas", were no more required for investigation or interrogation purposes---No prospect was available of the commencement of trial of accused persons in near future---No strong reason existed to withhold the concession of bail, when speedy trial was indefeasible right of accused persons---Mere heinousness of crime, would not disentitle accused from the concession of bail---Accused were directed to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioners.

M. Iqbal Mohmand for the State.

Date of hearing: 25th January, 2016.

2016 P Cr. L J 741

[Peshawar]

Before Qalandar Ali Khan, J

AHSAN BASHIR---Petitioner

Versus

The STATE---Respondent

Cr. M. No. 398-A of 2015, decided on 21st September, 2015.

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, common object---Bail, refusal of---Accused claimed to be less than 18 years of age at the time of occurrence, but "Detailed Marks Certificate" of class X of accused, showed him of more than 18 years of age at the time of occurrence---Direct charge in the FIR, medico-legal reports, recovery of pellets, crime empties and weapon of offence i.e. .12 bore shotgun from accused; his abscondence for considerable period; and statements of the eye-witnesses, would go a long way to connect accused with the commission of offence, which claimed two lives and caused injuries to two others, disentitled accused to the concession of bail---Direct charge of accused in the FIR for an offence falling in the prohibitory clause of S.497, Cr.P.C., supported by medical report; his conduct of changing his stance before the courts with regard to his age, commencement of delayed trial due to applications of accused, served as restraining factor---Accused earlier had approached High Court for bail on almost the same grounds, which was dismissed as withdrawn---Deep appreciation of evidence and merits, were not warranted at the bail stage---Tentative assessment of material on record tilted the case towards refusal of bail to accused, at the stage when the trial had already commenced---Application for post arrest bail was dismissed with direction to the Trial Court to strive for expeditious disposal of the case.

2009 PCr.LJ 47; PLD 2009 Lah. 535; 1970 SCMR 30; 2008 YLR 1751; PLD 2003 Kar. 60; 2013 PCr.LJ 1105; 2002 SCMR 1842; 2013 PCr.LJ 675; 2012 SCMR 556; PLD 1994 SC 65; PLD 2006 Pesh. 5; 2015 PCr.LJ 1321; PLD 2014 Pesh. 127; 2002 SCMR 1886 and 2007 PCr.LJ 1004 ref.

Qazi Shams ud Din for Petitioner.

Raja Muhammad Zubair, Assistant AG and Fazal-i-Haq Abbasi for the State.

Date of hearing: 21st September, 2015.

2016 P Cr. L J 754

[Peshawar]

Before Muhammad Daud Khan, J

MOHSIN GUL---Applicant

Versus

The STATE---Respondent

Cr. M. Bail Application No.1373-P of 2015, decided on 18th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possessing and trafficking narcotics---Bail, refusal of---Contraband was recovered from the truck on the pointation of accused, which was being driven by him---Keeping in view the recovery of huge quantity of narcotics weighing 4,800 grams; about which report of Forensic Science Laboratory was also in the positive; and the offence being non-bailable and fell within the mischief of S.51 of Control of Narcotic Substances Act, 1997 and S.497(1), Cr.P.C., accused was not entitled to the concession of bail.

Socha Gul v. The State 2015 SCMR 1077 rel.

Farhana Marwat for Applicant.

M. Iqbal Mohmand, Standing Counsel for ANF for State.

Date of hearing: 18th September, 2015.

2016 P Cr. L J 793

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

FARMANULLAH---Appellant

Versus

NIQAB KHAN and another---Respondents

Cr. A. No. 181-P of 2012, decided on 8th October, 2015.

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

----S. 302(b)---Qatl-i-amd---"Ocular evidence" and "circumstantial evidence"---Scope---Ocular evidence, would mean, direct evidence furnished by the eye-witnesses in respect of fact, while circumstantial evidence was provided, not by direct testimony of eye-witnesses to a fact to be proved, but the bearing upon that fact or other and subsidiary facts, which were relied upon as inconsistent with any result other than the truth of the principal fact---Circumstantial evidence, was evidence of fact from which the facts in issue, were to be inferred as a natural or probable conclusion--- Fundamental principle of universal application in cases dependant on circumstantial evidence, was that in order to justify inference of guilt of accused, incriminating fact must be incompatible with innocence of accused, or guilt of any other person; and incapable of explanation upon any other reasonable hypothesis than that of his guilt---Law did not prohibit conviction of accused in the murder case on the basis of circumstantial evidence.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence---Appreciation of evidence---Complainant and prosecution witness, had furnished ocular evidence of handing over arrested accused persons along with the decomposed dead body of minor---Both were consistent in said ocular evidence---Nothing beneficial could be extracted from them despite taxing cross-examination by the defence---One of the prosecution witnesses, was quite impartial, having no enmity or ill-will with accused persons---He had fully corroborated the version of said two prosecution witnesses, qua arrest of accused persons; their production, and recovery of decomposed dead body of minor deceased from the possession of accused persons---Said straightforward and confidence inspiring evidence was supported by medical evidence---Accused persons being the first cousins of the father of the complainant, dwelling with him in the common house, ought to have participated in search process of the minor, which they did not, which proved their guilty conscience---Recovery of decomposed dead body of minor deceased was sufficient proof qua his murder on the very first day of his missing---Motive part of occurrence, as alleged by the complainant, that accused persons had a dispute over the common house with the complainant, had fully been proved---Defence plea of accused persons, which was without any solid proof, would not be sufficient to brush aside the straightforward and confidence inspiring ocular account of the prosecution witnesses---Trial Court, righty disbelieved defence plea of accused persons---Prosecution having proved the guilt of accused persons through ocular, as well as circumstantial evidence, Trial Court had rightly held them guilty of the offence---They were rightly convicted and sentenced---Impugned judgment of the Trial Court being well reasoned, and based on proper appreciation of evidence on record, was not open to any interference by the High Court.

Jalaluddin Akbar Azam Khan Gara for Appellant.

Arshad Hussain Yousafzai for the Complainant.

Mian Arshad Jan, AAG for the State

Date of hearing: 22nd September, 2015.

2016 P Cr. L J 836

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

KHAWAS RASOOL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 22-A, 38-A and Criminal Revision No. 10-A of 2012, decided on 16th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Entire prosecution case, hinged on the dying declaration of the deceased complainant, (then injured)---Despite presence of prosecution witness at the time of lodging of report by the deceased, (then injured), he did not sign/thumb impress the report as rider---No report of the Medical Officer was obtained on the Murasila showing the deceased complainant (then injured) fully conscious and capable of making the report, in order to lend credence to the report as a dying declaration---In such a situation, dying declaration, was to be accepted for the purpose of holding accused guilty of the offence, with great care and caution, especially when maker was not subjected to cross-examination---Story narrated in the FIR, did not appeal to common sense---FIR showed the deceased standing near the door outside the house, but the site plan, mentioned the place of occurrence inside the house, wherefrom blood stained earth, and empty shell of .30 bore were recovered and positive reports were obtained from the Forensic Science Laboratory, as well as Firearms Expert, thereby confirming the scene of the occurrence, shown in the site-plan, as against the one, recorded in the FIR by the deceased (then injured)---Statements of eye-witnesses, which were not worthy of credence, had created serious doubt in the case of the prosecution---No one from the nearby houses, shown in the site-plan, was attributed to the spot, despite noise, grappling between accused and the deceased---Other two co-accused, were acquitted of the charge by the Trial Court and appeal against said acquittal also stood dismissed---Motive for the offence, remained shrouded in mystery---In view of discrepancies and glaring contradictions in the case of the prosecution against accused, it was not safe to rely on the dying declaration, in absence of credible corroborative ocular and circumstantial evidence---Conviction and sentence of accused, recorded vide judgment of the Trial Court, were set aside---Accused was acquitted of the charge levelled against him, and was set at liberty, in circumstances.

2015 YLR 624; 2015 MLD 690; 1999 PCr.LJ 707; 2008 PCr.LJ 1655; 2012 YLR 636; 2012 PCr.LJ 1918; PLD 2012 Pesh. 1; 2013 MLD 1879 and 2014 PCr.LJ 715 ref.

Wajih-ur-Rehman Khan Swati for Appellant.

Muhammad Naeem Abbasi, A.A.-G. and Qazi Shams-ud-Din for the State.

Date of hearing: 16th June, 2015.

2016 P Cr. L J 879

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD FAIZAN alias FAIZI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 25-A, 24-A, 31-A and 50-A of 2015 and Criminal Revision No. 6-A of 2015, decided on 5th November, 2015.

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

----Ss. 6, 7, 12, 23 & 25---Penal Code (XLV of 1860), S. 376(2)---Rape---Forum of trial---Anti-Terrorism Court---Jurisdiction---Two accused were convicted by Anti-Terrorism Court under S. 376(1), P.P.C. and sentenced to imprisonment for fourteen years and ten years respectively, while female accused was acquitted of the charge---Validity---Anti-Terrorism Court was vested with jurisdiction under S.12 of Anti-Terrorism Act, 1997, only to try cases under Anti-Terrorism Act, 1997---Word "shall" used in S. 23 of Anti-Terrorism Act, 1997, left no discretion with Anti-Terrorism Court once it had formed opinion that the offence was not a scheduled offence---When Anti-Terrorism Court formed opinion that offences were not scheduled offences, then it was incumbent upon it to transfer the case for trial to Court of ordinary jurisdiction---Case could be transferred under S. 23 of Anti-Terrorism Act, 1997, after taking cognizance of offence by Anti-Terrorism Court---High Court set aside conviction and sentence passed by Anti-Terrorism Court and the case was transferred to court of ordinary jurisdiction for decision afresh---Appeal was allowed in circumstances.

(b) Judgment---

----Judgment passed without jurisdiction is nullity in the eye of law.

Fazal-e-Haq Abbasi, Sajjad Afzal and Junaid Anwar for Appellants.

Additional A.G. for the State.

Ghulam Mustafa Swati and M. Arshad Awan for the Complainant.

Date of hearing: 5th November, 2015.

2016 P Cr. L J 900

[Peshawar]

Before Ikramullah Khan, J

MURAD ALI---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous B.A. No. 291-B of 2015, decided on 11th February, 2015.

(a) 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 and common intention---Bail, refusal of---Cross version/FIR, plea of---Principles---Accused, along with others, was alleged to have caused the death of deceased and injured the other by firing at them and the complainant with the intent to murder---Accused had already succeeded twice to get bail before arrest, but he had never appeared before the court thereafter---High Court, while confirming bail before arrest of the co-accused in the same case, had already given its findings on merits of the case with regard to present accused---Petitioner had been attributed specific role of firing at the deceased---Medical evidence, circumstantial evidence and ocular account of two eye witnesses supported and prima facie corroborated the prosecution version---Contention of the accused that present case involved cross version against the complainant party was not conceivable at that stage, for the reasons that firstly, the complainant of the cross FIR had alleged that he had been hit by the firing of the injured prosecution witness, but no crime empty and blood stained earth had been recovered from the spot, secondly, complainant of the cross version was not mentioned in the FIR in question---Place of occurrence in the cross FIR was also different---Mere plea of cross version could not be a ground for release of an accused---Complainant of the cross FIR had also not disclosed anything with regard to the occurrence---Accused was prima facie connected with the offence of qatl-i-amd, which squarely fell within the prohibitory clause---Bail petition was, therefore, dismissed accordingly.

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

----S. 497--- Bail--- Appreciation of evidence--- Principles--- Evidence shall be assessed tentatively at bail stage and deeper appreciation of evidence, being not requirement of law, is not permissible.

M. Rasheed Khan Dhrmakhel and Anwar-ul-Haq for Petitioner.

Pir Liaqat Ali Shah and M. Ashraf Khan for Respondents.

Saif-ur-Rehman, Additional A.G. for the State.

Date of hearing: 11th December, 2015.

2016 P Cr. L J 912

[Peshawar]

Before: Muhammad Daud Khan and Haider Ali Khan, JJ

HAZRAT SALAM---Appellant

Versus

Mian JAN and another---Respondents

Criminal Appeal No. 47 of 2007, decided on 16th February, 2016.

2016 P Cr. L J 924

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

TAHIR KHAN---Appellant

Versus

The STATE and others---Respondents

Cr. A. No. 128-A of 2009, decided on 5th November, 2015.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 150---Qatl-i-amd---Hostile witness, testimony of---Scope---Witness who had been declared hostile would not become unreliable and his testimony could not be brushed aside provided same was found to be credible, however since a hostile witness spoke in different voices, therefore deposition of such witness had to be evaluated with great care and caution and utmost attempt was to be made to get independent corroboration thereof from surrounding circumstances of the case---FIR stated that complainant was hit by accused with a brick on his head but on record there was no evidence which showed any injury on person of complainant despite the fact that Trial Court had afforded an opportunity to the prosecution to locate injury sheet of complainant but nothing was produced before court to such effect---Medical evidence of deceased also did not corroborate the evidence of hostile witness and prosecution had sought corroboration from recovery of crime pistol and empty shell fired from it but such recoveries hardly advanced prosecution case as not only pistol was recovered from a joint kitchen but independent marginal witness was abandoned for being unnecessary--- Place wherefrom crime pistol was recovered was doubtful as in site plan of main case under S.302, P.P.C., kitchen had been shown situated towards eastern side of house where occurrence had taken place, whereas in the site plan prepared pursuant to recovery, said kitchen had been shown situated towards western side of house, so recoveries of pistol was of no help to prosecution---Impugned judgment of conviction was set aside and accused was acquitted of the charge---Appeal was allowed, accordingly.

(b) Criminal trial---

----Hostile witness---Evidence of hostile witness remained admissible and conviction can be based on such testimony but for safe administration of criminal justice in such a case adequate and necessary corroboration was need of the hour without which no conviction could be recorded against an accused---One slightest doubt was sufficient to acquit the accused because to free a criminal mistakenly was better than to punish someone innocent mistakenly.

M. Javeed Tanoli for Appellant.

Aysha Nayyab Qureshi for the State.

Abdul Qayyum for the Complainant.

Date of hearing: 5th November, 2015.

2016 P Cr. L J 951

[Peshawar]

Before Qaiser Rashid Khan, J

WAZIR GUL---Petitioner

Versus

The STATE and 2 others---Respondents

Bail Application No. 1236-P of 2015, decided on 16th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---National Database and Registration Authority Ordinance (VIII of 2000), S.30---Foreigners Act (XXXI of 1946), S.14---Bail, refusal of---Contention of complainant was that accused along with his two sons being Afghan Nationals had acquired Pakistan CNICs---Accused had never claimed to be a Pakistani and he admitted himself to be an Afghan National presently settled in Germany with a German nationality---Validity---Procuring a Pakistan CNIC by a foreign national was undoubtedly a serious offence---Bail was refused, in circumstances.

Syed Abdul Fayaz for Petitioner.

Muhammad Safdar Khan Standing Counsel for the State.

Date of hearing: 16th July, 2015.

2016 P Cr. L J 972

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

WAQAS HUSSAIN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No. 959-A of 2015, decided on 7th October, 2015.

Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Power to arrest and detain suspected persons---Deputy Commissioner, on police report which showed petitioners' involvement in two criminal cases, ordered the petitioners to be detained in prison for indulging in activities which were prejudicial to public and safety maintenance of public order in the District---Validity---Such stereotype reckless and ruthless detention orders, simply passed on police report, without any complaint from general public or material showing threat to public order and safety emanating from petitioners, spoke volumes about bureaucratic apathy regarding law and Constitution by Executive Head of District---Frequent resort to preventive detention under S. 3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960 was nothing more than futile attempt on part of District administration to create misperception about maintenance of peace and order in District---Impugned orders, being arbitrary, perverse, capricious, illegal and in clear disregard of fundamental right of petitioners as guaranteed by Constitution, were not sustainable---Impugned orders were, therefore, set aside---Constitutional petitions were allowed in circumstances.

Noman Malik for Petitioner.

Muhammad Naeem Abbasi, A.A.-G. for Respondents.

Date of hearing: 7th October, 2015.

2016 P Cr. L J 1017

[Peshawar]

Before Yahya Afridi, J

SHAHID ORAKZAI---Petitioner

Versus

Mian MUHAMMAD NAWAZ SHARIF, PRIME MINISTER OF PAKISTAN and another---Respondents

Cr. Misc. (COC) No. 313 of 2014 in Cr. R. No. 87 of 2013, decided on 29th December, 2014.

(a) Contempt of Court Ordinance (IV of 2003)---

----Ss. 3 & 11(2)---Proceedings for contempt---Nature---Locus standi of petitioner--- Scope--- Contempt proceedings were independent proceedings, which could, inter alia, be initiated by information---Petitioner, by filing contempt petition, became an informer of the alleged contempt---Informer, having brought to the attention of the court an alleged contempt of court, was thereafter, divested of any vested right to pursue the same---Matter, thereafter, was essentially between the court and accused/contemnors, however, exception to said principle had been provided under S. 11(2) of the Contempt of Court Ordinance, 2003 that any person laying false information relating to the commission of an alleged contempt, would himself be liable to the proceedings for contempt of court.

Malik Hamid Sarfaraz's case PLD 1979 SC 991; Muhammad Ashraf's case PLD 1993 Pesh. 151; M. Aftab Saigal's case 1994 MLD 1659; Mian Muhammad Nawaz Sharif's case PLD 1995 Lah. 532; Humayun Khan's case 1998 PLC (C.S.) 34; Supreme Court Bar Association's case PLD 2002 SC 939; Ch. Muhammad Siddique's case PLD 2005 SC 186; Jaffar Hussain's case 2008 CLC 1609; Shafiaq Ahmad's case PLD 2008 Pesh. 100; Federation of Pakistan's case PLD 2009 SC 284; Muhammad Iqbal's case 2010 SCMR 632; Mehr Rehman's case 2013 PLC (C.S.)165; Hakam Qureshi's case PLD 1976 SC 713; Muhammad Ibrahim's case PLD 2000 SC 71; Dr. Ali Sana Shakir Bokhari's case 2001 SCMR 519; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; Chaudhry Zahoor Elahi's case PLD 1975 SC 383 and Muhammad Ishaq's case PLD 1957 SC 293 ref.

(b) Contempt of Court Ordinance (IV of 2003)---

----S. 19---Contempt proceedings---Right of appeal---Scope---Right of appeal was a substantive right, and could only be availed, if it was clearly and expressly provided under the enabling statute---Legislature, while enacting S.19 of Contempt of Court Ordinance, 2003, had provided only the forum of appeal, without specifying the persons, who had the right of appeal---Such omission on the part of the legislature was meaningful---Person, convicted of the offence of contempt of court, could not be rendered remediless, he, and none other could move the appellate forum in appeal against his conviction---If the contempt petition was dismissed, the proceedings were terminated; and not even the State or petitioner could agitate the same in appeal.

(c) Contempt of Court Ordinance (IV of 2003)---

----S. 6---Contempt of Court (allegedly by) Judge of High Court---No exclusion clause existed barring contempt proceedings against a Judge of the Superior Judiciary in the Contempt of Court Ordinance, 2003---Definition of "criminal contempt of court" in Cl.(c) of subsection (1) of S.6 of Contempt of Court Ordinance, 2003, had clearly envisaged the commission of said offence by any person, (including a Judicial Officer), who acted with intent to divert the course of justice---If the allegations of the petitioner were correct that Criminal Revision Petition was intentionally fixed by Judge of the High Court on the instruction of Prime Minister, before a Bench headed by him to dismiss the same, then a contempt was committed and court would be failing in its legal duty, if cognizance was not taken; and contempt proceedings were not initiated against the nominated contemnors.

Malik Feroz Khan Noon's case PLD 1958 SC 333; Jamal Shah's case PLD 1966 SC 1; Prakash Chand's case AIR 1998 SC 1344; Mujeebur Rehman Shami's case PLD 1973 Lah. 778 and Justice Hasnat Ahmed Khan's case PLD 2011 SC 680 ref.

(d) Contempt of Court Ordinance (IV of 2003)---

----S. 3---Peshawar High Court Establishment of Benches Rules, 1982, Rr.7 & 9---Constitution of Pakistan, Preamble & Art.204---Contempt of court---Allegations constituting contempt of court---Main thrust of petitioner's allegation was that Judge having adjourned the case rendered a date for revision petition to be fixed on the fixed date before the same Judge and not before any other Judge---Exclusive domain of fixation of cases remained with the Chief Justice---Case fixed before a Bench of the High Court, was not necessarily fixed and heard by the same Bench, even if the adjourning Bench rendered a date by court---Peshawar High Court Establishment of Benches Rules, 1982 undisputedly empowered the Chief Justice of the Peshawar High Court to fix any case before any bench as he would deem appropriate---Petitioner had no legal vested right to demand the case to be heard by a particular Bench---Apart from the bald allegations, the petitioner had not provided any direct or indirect evidence to support the same---Courts were not to assume jurisdiction for initiation of contempt proceedings on mere apprehension of the petitioner regarding the alleged contemptuous conduct---Such was not the vindication of the person of the Judge, but a shield to protect the courts from baseless abuse and wanton attack; and most importantly to maintain the confidence of the people in the administration of justice, the dignity, authority and majesty of the court---All were to guard and preserve the same; as it was mandated in the Preamble and flowing through the Constitution---Petition for contempt was bereft of merit and had scandalized the High Court by falsely imputing upon the independence; and impartiality of the Judiciary---Petitioner was provided time to consider his stance---All that the petitioner had mentioned in his petition was enough to proceed in contempt---No option was left to the court, but to proceed against the petitioner---Petitioner was convicted for contempt of court and sentenced to simple imprisonment for 24 hours.

Malik Hamid Sarfaraz's case PLD 1979 SC 991; Supreme Court Bar Association's case PLD 2002 SC 939; Mian Muhammad Nawaz Sharif's case PLD 1995 Lah. 532; Prakash Chand's case AIR 1998 SC 1344 and Khalid Masood's case PLD 1996 SC 42 ref.

Petitioner in person.

Abdul Latif Yousafzai, Advocate-General Khyber Pakhtunkhwa and Barrister Waqar Ahmed Khan, Friend of the Court for Respondents.

Date of hearing: 29th December, 2014.

2016 P Cr. L J 1068

[Peshawar]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

HABIBULLAH---Appellant

Versus

BILAL KHAN and 5 others---Respondents

Criminal Appeal No. 5-B of 2013, decided on 4th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 449 & 149---Qatl-i-amd; attempt to commit qatl-i-amd; house trespassing in order to commit offence punishable with death; rioting, armed with deadly weapon; common object---Appreciation of evidence---Benefit of doubt---Delay in reporting case---Accused persons were alleged to have entered into the house of the complainant with firearms and opened fire at the complainant party, which resulted in death of the complainant's mother---Report had been lodged with delay of two and half hours; which, therefore, could be inferred to have been lodged with consultation and deliberations---Brother and sister of the complainant, being eyewitness, were present with the complainant at the time of lodging of the report, but none of them had signed or thumb impressed the report as rider---Statements of the eyewitnesses contained improvements as to the manner of occurrence meant to strengthen the prosecution case---Said statements were also suffered from glaring contradictions and discrepancies creating doubts about presence of the witnesses at the spot---Said statements, therefore, lost their credibility and evidentiary value; hence, the same could not be relied upon---Investigating Officer had deposed that during spot inspection, the complainant and eyewitnesses, having stated that they had taken shelter in three rooms, had not made pointation of the rooms, nor anybody pointed out the bullet marks present on the surrounding walls---Statement of the Investigation Officer did not find corroboration with the facts and circumstances of the case; the same, therefore, was not worth reliance---Forensic Science Laboratory report showed that all the twelve empties had been fired from one and the same 7.62 MM bore weapon, which meant that the occurrence was the act of one person; whereas, the complainant, implicating five accused persons, had spread a wide net---Had all five accused persons fired through Kalashnikov rifles, fully automatic weapons, then in that case, there would be no occasion for the eyewitnesses and inmates of the crime house to escape unhurt; rather, substantial damage would have been caused to the deceased and the others---Said fact showed that the number of the accused and the charge both were highly exaggerated---Dispute of stealing cock, which was alleged to have been the motive, was with the absconding accused and one other, but the complainant had charged five accused in all for the alleged occurrence---Prosecution case was replete with grave doubts with regard to the manner of the occurrence as well as the participation of large number of accused, which had to be resolved in favour of the accused---Ocular account, to carry conviction on capital charge, in all circumstances, must have come from unimpeachable source; otherwise, evidence short of such standard could not be infused life to place reliance on the same, even if the same was corroborated---High Court acquitted the accused of all charges---Appeal was allowed in circumstances.

Abdur Rahman v. Fateh Sher and 8 others 1996 SCMR 176; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Jehangir alias Badshah and Muhammad Naveed v. The State 1995 SCMR 1715; Asghar Ali v. The State 1992 SCMR 2088 and Jahangir Hayat v. The State PLD 1999 Lah. 285 rel.

Faqir Mahboob-ul-Hamid for Appellant.

Saifur Rehman Khattak, Additional A.-G. for Respondents.

Date of hearing: 4th June, 2015.

2016 P Cr. L J 1096

[Peshawar]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

FARMAN ULLAH and 5 others---Petitioners

Versus

The STATE through Additional Advocate-General, Peshawar and 4 others---Respondents

Writ Petition No. 170-M of 2015, decided on 13th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 227---Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act (I of 2005), S.7---Penal Code (XLV of 1860), Ss. 279, 354, 186, 147 & 149---Rash driving or riding on a public way, assault or criminal force to woman with intent to outrage her modesty, obstructing public servant in discharge of public function, rioting, common object---Application for insertion of new section of law in FIR---Jurisdiction of Justice of Peace---During trial of case, respondent who was allegedly assaulted by the petitioners/accused persons, moved application under S.22-A, Cr.P.C., for insertion of new section (S. 353, P.P.C.) in the FIR---Justice of Peace, while exercising powers under S.22-A, Cr.P.C., allowed said application and directed S.H.O. concerned to insert said section of P.P.C. in the FIR---Validity---Under S.7 of Khyber Pakhtunkhwa Prosecution Service (Constitution, Functions and Powers) Act, 2005, had prescribed the powers of the prosecutor to scrutinize the case---Insertion or deletion of the section of law, fell within the exclusive domain of the prosecutor---Insertion or deletion of the offence in the FIR being job of the investigation, fell within the exclusive domain of the Prosecutor/Investigating Agency; and Justice of Peace, had no power, either to interfere with the process of investigation; or to direct deletion, or insertion of section of law in the FIR---Section 227, Cr.P.C., empowered the Trial Court to alter or add to any charge at any time before the judgment was pronounced---Since in both the cases, the prosecution evidence, was yet to be recorded, it was within the powers of the Trial Court to insert the sections of law in the FIRs, prayed for by the applicants/respondents---Trial Court, would consider the allegations levelled in the FIRs and other circumstances of the cases for making its mind to insert the offences in the FIRs---If the material on record, and evidence of the prosecution, would suggest that a cognizable offence, was made out, then the Trial Court, had the power to insert the relevant sections of law in the FIR; and amend the charge, either on application or on its own motion---Orders passed by Justice of Peace, were set aside, in circumstances.

2008 YLR 2017; PLD 2015 Lah. 84; PLD 2009 Lah. 135; 2007 PCr.LJ 124 and 2010 PCr.LJ 45 ref.

Akhtar Munir Khan for Petitioners.

Sabir Shah, A.A.-G. for the State.

Date of hearing: 13th January, 2016.

2016 P Cr. L J 1124

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

WASIULLAH---Petitioner

Versus

ALI MOHSEEN and 2 others---Respondents

Criminal Revision No. 24-B of 2015, decided on 9th December, 2015.

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

----Ss. 265-F, 265-C, 540, 161 & 173---Evidence of prosecution---Power to summon material witnesses or examine person present---Examination of witnesses by police---Supply of statement and documents to accused---No embargo on examination of a person during course of trial, either in favour of prosecution or accused, who had not recorded his statement under S. 161, Cr.P.C.---Court had ample power to examine any person as witness in the case, irrespective of the fact whether his statement under S. 161, Cr.P.C. was recorded during the course of investigation or not---Person, who had been well cited as a witness both in the FIR and the report under S. 173, Cr.P.C., but his statement was not recorded under S. 161, Cr.P.C. could not be equated with a person who was neither cited as witness nor his statement was recorded during course of investigation---If witnesses' names appeared in the list of witnesses annexed with the report under S. 173, Cr.P.C. submitted before the trial court and once the prosecution was allowed to lead evidence, no special permission was required thereafter from the trial court for producing each and every witness---However, if prosecution or the court, in view of S. 265-F (2), Cr.P.C., desired to produce a person not cited as a witness in the calendar of witnesses, then the permission in that regard from the Trial Court became necessary---Provision of S. 265-F (2), Cr.P.C. was in addition to S. 265-F(1), Cr.P.C.---Name of the proposed prosecution witness was not only mentioned in calendar of witnesses but he had also been cited as an injured person in the FIR---Provisions of both Ss. 265-F(2) & 540, Cr.P.C. were, therefore, not applicable to the case---Revision petition was dismissed in circumstances.

Nekam Deen v. The State through Advocate-General and 15 others PLD 2006 SC(AJ&K) 43 rel.

Shahbaz Masih v. The State 2007 SCMR 1631 distinguished.

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

----S. 265-F---Evidence of prosecution---Scope---Section 265-F(1), Cr.P.C. makes it mandatory for trial court to take all such evidence as may be produced in support of prosecution case---No restriction exists for prosecution to produce evidence of its choice or to apply for permission of the court in this regard.

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

----S. 265-F----Evidence of prosecution---Scope---Under S. 265-F(1), Cr.P.C., if a witness, who is acquainted with the facts of the case and who has not been produced by prosecution in the first instance, is desired to be summoned through court, the same is subject to permission of the court---In view of S. 265-F(3), Cr.P.C., court may refuse to summon any such witness mentioned in S. 265-F(2), Cr.P.C., if the court is of the opinion that the witness is being called for purpose of vexation or delay or defeating the ends of justice---Court, however, has no such choice to refuse to examine any witness produced by prosecution under S. 265-F(1), Cr.P.C.

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

----Ss. 540 & 265-F---Evidence of prosecution---Power to summon material witnesses or examine person present---Scope---Section 540, Cr.P.C. is more exhaustive and confers vast jurisdiction upon the court even to examine a witness not summoned in the case or to examine any person in attendance if his evidence appears to be essential for just decision.

Farooq Khan Sokaripur for Petitioner.

Sultan Mehmood Khan for Respondents.

Saif-ur-Rehman, Additional A.G. for the State.

Date of hearing: 9th December, 2015.

2016 P Cr. L J 1151

[Peshawar]

Before Qalandar Ali Khan, J

Sardar SAMEER ASMAT---Petitioner

Versus

The STATE---Respondent

Criminal M. No. 499-A of 2015, decided on 22nd September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.161---Prevention of Corruption Act (II of 1947), S.5(2)---Illegal gratification---Bail, grant of---Both offences, with which accused had been charged did not fall within the prohibitory clause contained in S.497, Cr.P.C.; as maximum penalty prescribed for offence under S.161, P.P.C., was three years; whereas the penalty provided for S.5(2) of Prevention of Corruption Act, 1947 was up to seven years---In both the said provisions of law, it had been left to the discretion of the Trial Court to either award the penalty of imprisonment or impose fine, or sentence an accused to both the penalties of imprisonment and fine---Only imposition of fine was left at the discretion of the Trial Court; in which case refusal of bail to accused, resulting in incarceration of accused till conclusion of the Trial would amount to double jeopardy---Grant of bail in offences, not falling within the prohibitory clause of S.497(1), Cr.P.C., was a rule and refusal thereof an exception---Bail could not be withheld as a punishment---Accused, was admitted to bail, in circumstances.

PLD 1993 Pesh. 104; 2013 PCr.LJ 1051 and 2011 SCMR 161 ref.

Fazal-e-Haq Abbasi for Petitioner.

Raja Muhammad Zubair, Assistant A.G. for the State.

Date of hearing: 22nd September, 2015.

2016 P Cr. L J 1178

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

MUHAMMAD IRFAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 187-P of 2014, decided on 27th January, 2015.

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

----S. 9(c)---Explosive Substances Act (XI of 1908), Ss. 5 & 5-A---Anti-Terrorism Act (XXVII of 1997), S.7---Possessing explosive material and narcotics---Act of terrorism---Benefit of doubt---Recovery, had not been effected from the vehicle of accused persons---One of the prosecution witnesses had stated that contraband, were in the shape of slabs, while other prosecution witness stated that same were Garda charas---Both prosecution witnesses contradicted each other in that respect---Recovery memo. and card of arrest of accused, did not bear the FIR number, due to which it was not clear that same belonged to which case; and from whom it had been received---Allegedly recovered contraband, was sent to Forensic Science Laboratory after delay of five days from its recovery, for which no plausible explanation had been offered by the prosecution; nor the concerned official in whose safe custody it were lying---Recovery of explosive materials, were also doubtful, as it was received in 'Bomb Disposal Unit' after delay of five days; and Bomb Disposal Expert examined the same, but neither report of Bomb Disposal Expert had been exhibited during trial, nor person who examined the same had been produced in the court in order to strengthen the prosecution version regarding recovery of explosive material---Due to non examination of author of Bomb Disposal Unit, his report had no evidentiary value regarding alleged recovery of explosive---Joint challan had been submitted in two different offences; and accused were also tried jointly by the Trial Court, which was not in accordance with law---Accused had not made any confession, nor any evidence regarding their link with 'banned organization' and terrorist had been established by the prosecution---Prosecution, also failed to bring on record any previous history of accused persons regarding their previous conviction or involvement in narcotics case, which could connect them with the commission of offence---Prosecution case being full of doubt and material contradiction, benefit of the same would go to accused---Prosecution had failed to prove its case against accused persons beyond shadow of reasonable doubt; and Trial Court had not appreciated the prosecution evidence in its true perspective; and was not justified in convicting accused persons---Impugned judgment of the Trial Court was set aside, accused were acquitted of the charges, and were released, in circumstances.

Date of hearing: 27th January, 2015.

2016 P Cr. L J 1194

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalander Ali Khan, JJ

Syed SALIM SHAH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

W. P. No. 91-A of 2016, decided on 9th February, 2016.

Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3 & 16---Penal Code (XLV of 1860), Ss. 341, 147 & 149---Punishment for wrongful restraint, punishment for rioting, common object---Abuse of power to arrest and detain suspected person---Detention made for humiliation and harassment---Detention order not served on detenu before arrest/issued after arrest and detention---Effect---Right to be communicated grounds of preventive detention---Necessity---Petitioner had already been booked not only under the provisions of P.P.C. but also under S. 16 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---District Administration could justifiably resort to preventive detention under S. 3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960 before the occurrence if there was likelihood of breach of peace; but after the occurrence and registration of case against the petitioner on basis of the same charges, no justification existed for detention of the accused under S. 3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960, especially when he had already secured ad interim pre-arrest bail for the offences under P.P.C. from court of competent jurisdiction to the knowledge of the police/District Administration---Arrest of the detenu, despite his showing order of the pre-arrest bail to the police, spoke volumes about the actual design of the District Administration, that was humiliation and harassment under all circumstances---Date mentioned in the impugned order showed that the same had not been served on the petitioner at the time of his arrest under S. 3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960, as claimed therein, and also that no such order existed at time of his arrest---Petitioner had a right to be communicated the grounds of his preventive detention, and the District Administration, having not done that, had, therefore, acted in flagrant violation and disregard to the mandatory provision of the law--- High Court, setting aside impugned order, released the petitioner--- Constitutional petition was allowed in circumstances.

PLD 1992 Pesh. 26 rel.

Fazal-i-Haq Abbasi, Shad Muhammad Khan, Mehdi Zaman Khan and Tahir Hussain Lughmani for Petitioner.

Muhammad Naeem Abbasi, Additional Advocate-General for Respondents.

Date of hearing: 3rd February, 2016.

2016 P Cr. L J 1213

[Peshawar (Mingora Bench/Dar-ul-Qaza)]

Before Muhammad Daud Khan, J

MUHAMMAD AHMAD and another---Petitioners

Versus

STATE through AAG and another---Respondents

Criminal Miscellaneous B.A. No. 62-M of 2016, decided on 7th March, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iv) & 34---Qatl-i-amd; attempt to commit qatl-i-amd, Ghayr Jaifah/Mudiha; common intention---Bail, refusal of---Cross version/FIR, plea of---Principles---Injured himself was the complainant of the case, who had charged the accused persons for commission of the offence with specific motive behind the same---Investigation Officer had recovered the weapon of offence from the accused and also recovered empties during spot inspection---Trial of the case had already commenced---Plea of cross version invariably carried phenomena of self-defence, and parties were normally allowed bail, when it was not discernible as to who had been the aggressor and who had acted in self-defence; however, in present case, on tentative assessment of the evidence, no such circumstance could be gathered except cross FIR, in which only allegations of clothes tearing had been levelled---Mere plea of cross FIR was not acceptable as license for grant of bail, when the prosecution evidence prima facie connected the accused with commission of the crime, entailing capital punishment and when accused himself admitted the occurrence by taking plea of cross version--- Case of the accused came within the prohibitory limb of S. 497, Cr.P.C.---Bail application was dismissed accordingly.

Nisar Muhammad Wassan and another v. The State 1992 SCMR 501 and Arif Din v. Amil Khan and another 2005 SCMR 1402 ref.

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

----S. 497---Bail---Appreciation of evidence---Accused highlighted the contradictions existing between the ocular account, medical evidence and the entries made in the site plan---Court was not supposed to go into deep appreciation of evidence while setting on bail plea, as that was the job of the trial court.

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

----S. 497---Bail---Cross version/FIR, plea of---Effect---Raising the plea of cross version, the occurrence is said to have been admitted.

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

----S. 497---Bail---Cross version/FIR, plea of---Accused of every cross case cannot claim bail as a matter of right.

Nisar Muhammad Wassan and another v. The State 1992 SCMR 501 and Arif Din v. Amil Khan and another 2005 SCMR 1402 ref.

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

----S. 497---Bail---Cross version/FIR, plea of---Facts of every cross case are to be tentatively scrutinized and assessed and then to be decided on its own merits.

Nisar Muhammad Wassan and another v. The State 1992 SCMR 501 and Arif Din v. Amil Khan and another 2005 SCMR 1402 ref.

Rashid Ali Khan for Petitioners.

Shams ur Rahman for Respondents.

Sabir Shah, A.A.-G. for the State.

Date of hearing: 7th March, 2016.

2016 P Cr. L J 1224

[Peshawar]

Before Qaiser Rashid Khan, J

ADNAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous B.A. No. 729-P of 2016, decided on 11th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss.15 & 17---Recovery of huge quantity of illicit arms and ammunition---Bail, refusal of---Good number of arms and 6000 rounds of various bores, were recovered from the vehicle wherein accused was accompanied by co-accused---Accused not only disclosed the names of his four absconding co-accused, but also the presence of secret cavities and arms/ammunitions in the vehicle---Accused, in circumstances, could not plead innocence and feign ignorance regarding the same---Plea of juvenility, was not available to accused---Huge quantity of illicit arms and ammunition, kept in the secret cavities of the car raised eye-brows about the intention of accused and his four absconding co-accused---Taking a tentative assessment of the available record, accused was prima facie linked with the commission of offence, which was both severe and heinous in nature; which attracted the prohibitory clause of S. 497, Cr.P.C.---Accused being not entitled to concession of bail, his bail petition was dismissed, in circumstances.

Syed Abdul Fayaz for Petitioner.

Mian Arshad Jan, AAG for the State.

Date of hearing: 11th April, 2016.

2016 P Cr. L J 1232

[Peshawar]

Before Nisar Hussain Khan and Muhammad Younis Thaheem, JJ

SHAMSHAD ALAM SAHA---Petitioner

Versus

SHO POLICE STATION TAKHT BHAI and 3 others---Respondents

W.P. No. 3862-P of 2015, decided on 8th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Registration of FIR---Petitioner alleged that the accused persons attacked them with fire arms with intention to kill, as a result of which one of the accused got injured, but the police refused to register FIR, as the accused had already registered FIR under S. 324/34, P.P.C. against the petitioners---Stance taken by the petitioner in the application before Justice of Peace under S. 22-A, Cr.P.C. and the allegations made in the application preferred to Deputy Inspector General of Police were in conflict with each other---Justice of Peace, therefore, had rightly dismissed the application---Petitioner should have filed criminal complaint, instead of filing the application under S. 22-A, Cr.P.C.---Constitutional petition was dismissed in circumstances.

Astaghfirullah for Petitioner.

Nemo for Respondents.

Date of hearing: 8th December, 2015.

2016 P Cr. L J 1238

[Peshawar]

Before Qaiser Rashid Khan, J

Qari NAZIR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous (BA) No. 391-P of 2016, decided on 29th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.18(b) & 22(b)---Arranging fake visa for abroad---Bail, grant of---Further inquiry---Enquiry was conducted in the case after about three long years of alleged incident, whereafter accused was nabbed in the matter---State counsel was questioned about the enquiry report; as well as the evidence collected against accused for his involvement in the illegal business, but barring the statement of the complainant, State Counsel was unable to furnish any adequate reply---Available facts and circumstances of the case, called for further probe into the matter---Accused was granted bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Muhammad Safdar Khan, Standing Counsel for the State.

Date of hearing: 29th February, 2016.

2016 P Cr. L J 1302

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Mrs. Irshad Qaiser, J

ZAHID ARIF---Petitioner

Versus

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

W.Ps. Nos. 2471-P, 2472-P and 2325-P of 2015, decided on 16th February, 2016.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR/Investigation---Principle---High Court in exercise of powers under Art. 199 of the Constitution can quash FIR but normally do not quash investigation of case at its preliminary stage.

(b) Administration of justice---

----Proceedings---Scope---Criminal and departmental proceedings are quite distinct from each other---If an accused is acquitted by Court of law, punitive action can be taken against him on departmental side and vice versa.

Arif Ghafoor v. Managing Director, H.M.C., Taxila and others PLD 2002 SC 13 and Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others 2006 SCMR 1005 rel.

(c) Interpretation of statutes---

----Retrospective effect---Principle---Only that law can be given retrospective effect which brings some changes in procedure---No retrospective effect can be given to a substantive law under which certain rights accrues to a person.

Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43 rel.

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

----Ss. 15 & 25(b)---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss. 3 & 5---Reinstatement in service---Scope---Petitioners were civil servants who were arrested in year 2000 by National Accountability Bureau but they were released as they entered into plea bargain---On departmental side, petitioners were proceeded under Removal from Service (Special Powers) Ordinance, 2000 and dismissed from service but Service Tribunal reinstated them in service---National Accountability Bureau once again initiated investigation against petitioners on the allegation that they sought illegal reinstatement in their service---Petitioners sought quashing of the proceedings on the ground that amendments in S. 15 of National Accountability Ordinance, 1999 had no retrospective effect---Validity---Amendments in National Accountability Ordinance, 1999 were not applicable to the case of petitioners nor National Accountability Bureau authorities could be given a free hand to initiate proceedings in a case at such a belated stage at their own whims especially when it had attained finality at a proper forum---Under plea bargain, petitioners were released before any trial, therefore, they could not be vexed twice by National Accountability Bureau authorities as to why they were reinstated in service when at the time of their release, no such provision of cessation of public office in field existed in National Accountability Ordinance, 1999 and relevant amendments in law were made thereafter---High Court declared actions initiated by National Accountability Bureau as null and void and inquiry/investigation/ proceedings against the petitioners were quashed---Constitutional petition was allowed in circumstances.

Siraj Din and 3 others v. Sardar Khan and 2 others 1993 SCMR 745; Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624; Dr. Javaid Shahbaz Rab v. The State through Chairman National Accountability Bureau, Islamabad 2011 PCr.LJ 376; Mansoor Ahmed Qureshi v. The State PLD 2005 Kar. 443; Pakistan Telecommunication Company Limited through Chairman and 3 others v. Messrs Muhammad Saeed Wazir, for General-Manager, (T&R)PTCL and another 2005 SCMR 1225 and Syed Abid Hussain Shah and 9 others v. Chief Secretary N.-W.F.P. Peshawar and 7 others 2013 PCr.LJ 974 ref.

Amir Javed for Petitioner.

Muhammad Jamil Khan, DPG and Umar Farooq Adam, AAG for Respondents.

Date of hearing: 3rd February, 2016.

2016 P Cr. L J 1378

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

NAEEM KHAN---Appellant

Versus

STATE through AAG at Bannu and another---Respondents

Criminal Appeal No. 42 of 2012, decided on 22nd April, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Case was of single accused, and to put the rope against the neck of an accused charged singly, there must be ocular account of unimpeachable character, trustworthy, confidence inspiring, corroborated by other material circumstantial evidence---Ocular account in the case had been furnished by solitary witness, who was the father of deceased---Said witness during his cross-examination, introduced some new events and circumstances, which had never mentioned in his report, totally negating his earlier stance---Delay of 50 minutes in lodging FIR had not been explained in initial report---Complainant made dishonest improvements, and hot and cold of complainant in same breath, cast serious doubts about his presence on the spot, and his conduct was quite unnatural and unbelievable---Medical evidence, did not corroborate the ocular account of the complainant---Occurrence had not taken place in the mode and manner as alleged by the complainant, but had taken place in some other manner---Recovery of blood stained earth from the spot, last worn blood stained clothes, recovery of crime empties and the autopsy report of the deceased, though had established the murder of the deceased with fire-arm on the spot, but by whom, was shrouded in mystery---No credible evidence being available to support the prosecution version, abscondence of accused, itself would not be sufficient to prove the guilt of accused---Prosecution evidence being highly discrepant, and full of infirmity, had created a genuine doubt regarding the participation of accused in the commission of crime---Impugned judgment being not sustainable, appeal was allowed, accused was acquitted of the charge, and was set at liberty, in circumstances.

Muhammad Ishaque v. The State 2007 SCMR 108; Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279; Saifullah v. The State 1985 SCMR 410; Riaz Masih v. The State 1985 SCMR 1730 and Siraj v. Crown PLD 1956 Federal Court 123 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Finding of guilt of accused, must not be based on probabilities to be inferred from evidence---Such findings must rest on the evidence of unimpeachable character, otherwise the golden rule of benefit of doubt would be reduced to naught---Absolute certainty was seldom 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 other party.

(c) Criminal trial---

----Benefit of doubt---Scope---Many doubts were not needed in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind was sufficient for acquittal of accused; it would be better to acquit hundred culprits than convicting one innocent soul---Acquitting by error, would be better than convicting by error---One substantial doubt, was enough for acquittal of accused.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Abscondence of accused---Scope---Abscondence of accused alone, could not be a substitute for real evidence---Abscondence by itself, 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.

Sakhi Janan Khattak for Appellant.

Saif ur Rehman, Additional A.-G. for the State.

Alamgir Wazir for the Complainant.

Date of hearing: 22nd April, 2014.

2016 P Cr. L J 1408

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

Mst. BUKHTI-HAREM---Appellant

Versus

SABIR and 4 others---Respondents

Criminal Appeal No. 365 of 2000, decided on 13th February, 2014.

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

----S. 417(2-A)---Appeal against acquittal---Interference---Scope---Superior courts, normally do not interfere with the judgment of acquittal, but, where acquittal was the result of non-reading or misreading of material evidence on record, or said acquittal had led to gross miscarriage of justice, or the same was arbitrary, capricious, or against the record; said judgment of acquittal was to be interfered with and accused was to be convicted accordingly.

Muhammad Ali v. Muhammad yaqoob and 3 others 1998 SCMR 1814 rel.

(b) Penal Code (XLV of 1898)---

----Ss. 302, 324, 353 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Appeal against acquittal---Appreciation of evidence---Sufficient material was available on record to establish the guilt of accused, who had been assigned specific role of giving 'chapo' blow to the deceased, but evidence produced by the prosecution against accused had been disbelieved by the Trial Court---Statements of all the three prosecution witnesses, had remained unshaken despite lengthy and searching cross-examination---Un-impeached versions of said witnesses were truthful and confidence inspiring---Injuries on the person of two prosecution witnesses, were suggestive of the fact that they were not only present on the spot at the relevant time, but had also seen accused from very close range---Accused was identified in the torch light, and the reliability of prosecution witnesses, was duly established from the available material on record---Witnesses were quite natural and expected to be present at the relevant time---Ocular account furnished by prosecution, was not only consistent, but also confidence inspiring; and contradiction pointed out by accused being of trivial nature could not damage the veracity of the prosecution witnesses---Ocular testimony was fully corroborated by the medical evidence---Delay of about seven and half hours in lodging of the report, had reasonably been explained---No evidence of enmity or previous ill-will between accused and prosecution witnesses was available, which had excluded possibility of deliberation and consultation---Certain discrepancies in the statements of prosecution witnesses, medical evidence and site plan, which were minor in nature, did not have any material significance on merits of the case---Conclusions drawn by the court below for involvement of accused in the commission of offence, was not based on sound and cogent reasoning, but was perverse, arbitrary and based on misappreciation of evidence on record, calling for interference---Occurrence having taken place in spur of moment, it was not a case of capital punishment---Impugned judgment was set aside to the extent of accused, and he was sentenced to life imprisonment, with the direction to pay Rs.3,00,000 as compensation to the legal heirs of the deceased.

Zar Bahadur v. The State 1978 SCMR 136 and Haji Mir Aftab and 4 others v. The State PLD 1981 Pesh. 23 rel.

(c) Criminal trial---

----First Information Report---Delay in lodging FIR---Effect---Delay in criminal cases, by itself, in lodging the FIR was immaterial---Factors to be considered by the courts, were; firstly, that delay stood reasonably explained; and secondly, that the prosecution had not derived any undue advantage through the delay involved---Delay in lodging of report was material only when there was doubt regarding identity of culprits; or there existed enmity between the parties.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302, 324, 353 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Appeal against acquittal---Appreciation of evidence---One of co-accused having died, proceedings against him were abated--- Other co-accused, though were charged in the FIR, but medico-legal report of the injured prosecution witnesses revealed that only bruises were noticed on their person, and for such bruises three persons were charged; but with no specific role---Co-accused, in circumstances, were entitled to the benefit of doubt---Appeal filed against said co-accused, was dismissed, in circumstances.

Sher Muhammad Khan for Appellant.

Syed Sultanat Khan for Respondents.

Muhammad Javed, A.A.-G. for the State.

Date of hearing: 13th February, 2014.

2016 P Cr. L J 1461

[Peshawar]

Before Musarrat Hilali, J

AFSAR ALI---Petitioner

Versus

The STATE---Respondent

Cr. Misc. (B.A.) No.140-P of 2016, decided on 29th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), S.17---Penal Code (XLV of 1860), Ss.420 & 468---Passports Act (XX of 1974), S.6---Running illegal Travel Agency, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, possessing forged documents---Bail, grant of---Further inquiry---Allegation against accused was that he was found running illegal travel agency---Accused, could not produce any valid licence and raid of police led to the recovery of Pakistani Passports, other documents meant required for travelling abroad---Whether accused was owner of the travel agency, or he was chance visitor to the same was yet to be seen---Possession of a forged document, was not an offence, unless it was proved that same had been prepared or used with active connivance of a person---Knowledge of accused qua falsity or genuineness of the Passports, was a question to be determined after recording evidence, but accused could not be kept behind the bars for indefinite period when commencement of the trial was not in sight---Punishment provided in offences for which accused was charged, did not fall within the prohibitory limb of S.497, Cr.P.C.---Grant of bail in circumstances, was a rule, and refusal an exception---On tentative assessment of material, case of accused required further probe---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

F.M. Sabir for the State.

Date of hearing: 29th January, 2016.

2016 P Cr. L J 1469

[Peshawar]

Before Musarrat Hilali, J

BASHEER and 3 others---Petitioners

Versus

MUHAMMAD ILTAF KHAN and another---Respondents

Cr. R. 66-P of 2015 with Cr. Misc. No. 189-P of 2016, decided on 20th April, 2016.

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

----Ss. 190 & 193---Penal Code (XLV of 1860), Ss. 500 & 502-A---Defamation---Cognizance of complaint by the Sessions Judge---Scope---Complaint under S. 500, P.P.C. was filed before the Sessions Judge who took cognizance of the same---Validity---Offences under Chapter XXI of Penal Code, 1860 to be tried by Court of Sessions, however cognizance was to be taken by the Magistrate---Court of Session could not take cognizance of any offence falling under Chapter XXI, P.P.C. as a Court of original jurisdiction unless case was sent to it by a Magistrate---Impugned order passed by the Sessions Judge was set aside---Revision was allowed in circumstances.

Awal Khan v. The Superintendent of Police Attock and others 1989 PCr.LJ 909; Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608; Roshan Ali v. Amir Bux and others PLD 2002 Kar. 115; 2006 SCMR 562; 1993 SCMR 941; PLD 2010 Kar. 328; 2002 MLD 209; 2006 SCMR 562; 2009 PCr.LJ 405; 2012 PCr.LJ 1560; PLD 2010 Lah. 300 and 1993 SCMR 941 ref.

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

----S. 190---'Cognizance'---Meaning.

Khush Bakht-ur-Rehman and another v. The State 1985 SCMR 1314 rel.

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

----S. 190---'Trial'---Meaning.

Haqnawaz v. State 2000 SCMR 785 rel.

(d) Interpretation of statutes---

----When statutory amendment was clear and expressive, words could not be interpolated.

Ghulam Mohy-ud-Din Malik for Petitioners.

Muhammad Tariq Khan Hoti for Respondent No.1.

Muhammad Rahim Shah, A.A.-G. for the State.

Date of hearing: 20th April, 2016.

2016 P Cr. L J 1487

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

SANA-UR-REHMAN and others---Petitioners

Versus

The STATE and others---Respondents

Cr. M. No. 377-A of 2015, decided on 17th August, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused, father and three sons, were alleged to have killed son of complainant by beating him and injuring him with axe---Accused's father, had already been granted bail on ground of old age and infirmity---Accused, who have been assigned with effective role of inflicting axe blow on head of deceased leading to his death did not apply for bail---Present accused had been assigned ineffective role of fist and kick blows to deceased---Co-accused, father of present accused, who had been assigned same role had already been released on bail, although on additional ground of old age, and application for cancellation of bail had been dismissed---Post Mortem Report did not show cause of death as fist or kick blows; rather same had been clearly shown as injuries caused by sharp weapon to vital organs of deceased---Case of present accused was, therefore, one of further inquiry---Accused had been arrested immediately after occurrence and was behind bars since then without recovery of any incriminating material from their possession---No confessional statement had been made by accused---Investigation was already complete and Challan had been submitted, which implied that accused were no longer required to police or prosecution for purpose of investigation---Bail application was allowed accordingly.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, cancellation of---One of accused persons had been granted bail on ground of old age and infirmity---No indication was available of misuse of concession of bail on part of accused, who was already on bail on ground of old age and infirmity---Impugned bail order did not appear to be perverse or capricious, and same, therefore, did not call for any interference by High Court---Application for cancellation of bail was dismissed accordingly.

Ghulam Mustafa Khan Swati for Petitioners.

M. Naeem Abbasi, A.A.-G. for the State.

Shad Muhammad Khan for the Complainant.

Date of hearing: 17th August, 2015.

2016 P Cr. L J 1502

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

ASAD KHAN---Petitioner

Versus

DEPUTY COMMISSIONER MANSEHRA and others---Respondents

W.P. No. 836-A of 2015, decided on 9th September, 2015.

Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Arts. 4, 9, 10 & 15---Preventive detention---District Magistrate, on the report of local Police, issued detention order of petitioners---Involvement of petitioners in criminal cases were the sole basis for issuance of detention orders---District Magistrate without applying his mind to the information laid before him by the Police, used the words 'issue orders', for detention, in negation of duty enjoined upon him which was to satisfy himself that the order would serve the purpose of preventing petitioners from 'acting in any manner prejudicial to public safety or the maintenance of public order'---Neither the impugned order nor the documents placed on record could furnish such justification or cogent reasons for preventive detention of the petitioners---Preventive detention on grounds of petitioners' involvement in criminal cases would certainly amount to double condemnation, as they ought to face a trial, which may culminate either in conviction or acquittal---Preventive detention on the report of local Police who had previously registered a criminal case against the petitioners, that too, without application of mind, was counter to the letter and spirit of law---Impugned orders were not sustainable in law---High Court directed the petitioners should be released forthwith, if not required in any other case---Constitutional petitions were allowed accordingly.

1997 MLD 1236 rel.

Shad Muhammad Khan for Petitioner.

Muhammad Naeem Abbasi, Additional Advocate-General for Respondents.

Date of hearing: 9th September, 2015.

2016 P Cr. L J 1523

[Peshawar]

Before Assadullah Khan Chamkani, J

AFRIDI KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No.2061-P of 2015, decided on 4th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Complainant was not the eye-witness of the incident, while, two female alleged eye-witnesses, had specifically assigned the role of firing at the deceased to absconding co-accused---Role of firing had been attributed to absconding co-accused in the site plan---Question of common intention, was a state of mind of an accused, which could not be determined without recording evidence, when accused had not actively participated in the crime---Common intention of accused with the absconding co-accused/principal accused in the commission of offence, was yet to be determined during trial after recording evidence---Participation of accused in the commission of offence, required further probe into his guilt---Bail, could not be refused, merely on the ground that accused was directly charged in the FIR for a heinous offence, when otherwise he was found entitled for concession of bail; because mistaken relief of bail, could be repaired by convicting accused, if proved guilty at the trial, but no proper reparation could be offered for his unjustified incarceration, albeit, his acquittal---Accused, was admitted to bail, in circumstances.

Ishfaq Ahmad Afridi for Petitioner.

Waqar Ahmad, AAG for the State.

Date of hearing: 4th December, 2015.

2016 P Cr. L J 1558

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

USMANULLAH---Appellant

Versus

SHARAFTA KHAN and others---Respondents

Criminal A. No.607-P of 2009, decided on 12th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S.417(2-A)--- Qatl-i-amd, common intention--- Appeal against acquittal---Reappraisal of evidence---Accused persons claimed that it was a case of suicide, but evidence on record had excluded the possibility of suicide; and it was proved that the deceased had not committed suicide, but he was done to death by someone else---Confessional statements recorded by accused persons, proved to be voluntary and were not result of duress and any violence---Judicial Magistrate, had recorded the statements of accused persons according to procedure laid down in the Cr.P.C.; and no procedural irregularities could be found therein---Accused though later on retracted from their confession, but conviction on the basis of even retracted confession, could be awarded to an accused, if the court was satisfied that the confessional statements were true and voluntary---Motive i.e. land dispute, existed between the deceased and main accused---Statements of some of the prosecution witnesses also indicated that the deceased had disclosed before them, his apprehension of life threat from accused---Child witness, whose presence at the spot had been established, had sympathy and natural love with his deceased father; his statement should have been considered by the Trial Court, but that had not been done---Witnesses, were unanimous on the point that prior to firing, the deceased, was overpowered and asphyxiated---Prosecution had proved its case against accused, but the Trial Court had not properly appreciated the evidence---One of co-accused was a juvenile, and other was female, and from their confessional statements, it was clear that main role was played by accused in furtherance of a motive---Role of co-accused in committing the murder of the deceased could not be established with certainty---Co-accused were entitled to be acquitted from the charge---Impugned judgment, passed by the Trial Court, was set aside to the extent of acquittal of accused---Accused was convicted under S.302(b), P.P.C. and sentenced to imprisonment for life---Benefit of S.382-B, Cr.P.C., was extended to him---Appeal to the extent of rest of accused persons, was dismissed, and impugned judgment to their extent, was maintained.

Manjeet Singh v. The State PLD 2006 SC 30 rel.

Jalal-ud-Din Akbar Azam Khan Gara for Appellant.

Amir Gulab Khan and Syed Fayaz Muhammad Qazi for Respondents.

Sabir Shah, A.A.-G. for the State.

Date of hearing: 11th November, 2015.

2016 P Cr. L J 1588

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

MUNAWAR BACHA---Appellant

Versus

Mst. BASRAJA BIBI and another---Respondents

Criminal Appeal No. 56-P of 2014, decided on 25th February, 2016.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 121---Qatl-i-amd---Appreciation of evidence---Burden of proving that case of accused come within exceptions---Cross version/FIR and plea of self defence---Scope---One of the deceased had received four firearm injuries, out which one was on his neck below the right ear causing exit on the left side above left ear, regarding which the accused contended that said injury was from down to upward---Seat of injury on skull having hard bone and diversion of bullet after hitting hard surface was common phenomenon---Statements of eye-witnesses were corroborated by the site plan, recovery of blood and empties from the place of occurrence and the medical evidence---Ocular account furnished by the two eye witnesses rang true, as they had been attracted to the spot, which fell in front of their house, on hearing the fire shots, because a moment earlier, both the deceased had been summoned by the accused party---Forensic Science Laboratory report had also supported the prosecution version---Prosecution had produced firmly connected chain of evidence comprising of ocular account and circumstantial evidence---Complainant, when confronted with the injury of the accused, deposed that said injury was the result of firing of his own companion, and that the accused persons had falsely lodged the cross FIR---In the light of the site plan, accused appeared to be near the place of the deceased in the firing range of his own companion; thus possibility of his injury at the hands of his co-accused could not be ruled out; however, the injury could not be connected with the deceased, who was seventy years of age and empty handed---Presence of one of the two deceased persons had not been shown in the cross FIR---Accused had suppressed his own role and concealed the factum of death of both deceased persons both in the cross FIR and in his statement under S. 342, Cr.P.C., which rocked the very veracity of the cross version---Accused had not uttered a single word in his cross version that the complainant party was aggressor and he had acted in his self-defence, nor that both parties suddenly came across and tested their strength due to blood feud---Accused had tendered the record of the cross case in evidence on direction of the High Court during second remand, which indicated that the accused himself was aware of the inherent defect of his cross version---High Court observed that the whole episode was to be visualized in general perception as well as common practice of the society where people did make exaggeration---Court was to appraise the evidence and determine the mode and manner of occurrence with all corresponding possibilities, appearing on the record---Special exception taken by the accused had to be pleaded and proved by the accused in terms of Art. 121 of Qanun-e-Shahadat, 1984; whereas, the accused had not made any serious efforts to plead his case of self defence, nor had he uttered a single word in that regard either in his statement under S. 342, Cr.P.C. or in his initial report---Accused had also not opted to make statement on oath to explain his position---In view of the material deficiencies and legal infirmities existing in the cross version, present case was not to be treated as a case of self defence in legal parlance---Mere non-challenging of the acquittal of the co-accused would not be a ground for acquittal of the accused, if otherwise, on the appraisal of evidence, the accused had been found to be guilty of the murder---Complainant might not have filed appeal against the acquittal of the co-accused due to financial constraints, or there might be some other reason for the same; but the accused might not earn premium on that technical ground alone---Three assailants had been charged with firing at the deceased, including present accused, therefore as to whose fire shots had proved fatal was not certain---Accused had also raised plea of cross version during examination of the prosecution witnesses; one of the accused persons was already absconding and other had been acquitted by the trial court, against which no appeal had been filed---All said facts formed extenuating circumstance in favour of accused---Sentence of life imprisonment would, therefore, be the proper punishment to meet the ends of justice---High Court converted the death sentence of accused into life imprisonment--- Appeal allowed accordingly.

(b) Criminal Trial---

----Cross version---Appreciation of evidence---Principles---Prosecution evidence, at the first instance, is to be appreciated in its entirety, and then the cross version is to be discussed, which is to be followed by assessment of the whole evidence in totality for reaching at just conclusion---In the appreciation of evidence, if the prosecution version is found not worthy of credence, the defence version is to be accepted in totality---In cumulative assessment of the whole evidence, if the court comes to the conclusion that the defence version is not worth reliance and the prosecution evidence is trust worthy and confidence inspiring, then the latter is to be believed followed by recording conviction.

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

----Ss.96, 97, 98, 99 & 100---Right of private defence---Cross version---Scope---Principle of cross version primarily stems out of right of private defence as embodied in Ss. 96 & 97, P.P.C., but said provisions are subject to restrictions contained in S. 99, P.P.C.---No right of private defence exists against acts, which do not reasonably cause apprehension of death or grievous hurt---Section 100, P.P.C. further elaborates the circumstances in which right of private defence may extend to causing of death or any other harm to the assailant which is subject to the restrictions stipulated in S. 99, P.P.C.---Phrase 'voluntary causing of death of the assailant' contained in S. 100, P.P.C. points to a person who launches an assault and the victim of assault who acts in his self-defence.

Syed Abdul Fayaz for Appellant.

Rab Nawaz Khan, A.A.-G. for the State.

Complainant in person.

Date of hearing: 11th February, 2016.

2016 P Cr. L J 1640

[Peshawar]

Before Assadullah Khan Chamkani, J

HIMAYATULLAH---Appellant

Versus

MUHAMMAD IQBAL and another---Respondents

Criminal Appeal No. 339-P of 2009, decided on 15th January, 2016.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Criminal and civil proceedings---Maintainability---Maxim that 'a man should not be vexed twice'---Applicability---Trial court acquitted the accused on the ground that criminal proceedings were not maintainable as civil suit regarding the disputed amount of cheque had already been decreed in favour of the complainant---Findings of the Trial Court regarding non-maintainability of the criminal proceedings in presence of civil proceedings about the same transaction were against the law, because civil and criminal proceedings were two different remedies provided by law having different consequence; therefore, both remedies, being not overlapping, could be simultaneously availed by the complainant having a right under the law---In case different rights to commence proceedings of civil and criminal nature had sprung up with different results, those (remedies) could be availed differently, and the maxim that 'a man should not be vexed twice' would not be applicable---Decree passed in the civil suit filed by the complainant was shown to have been set aside by the appellate court---Bank account in question was in the name of the Company, and the Partnership Deed provided that the Account would be operated with joint signatures of two partners, including the accused; whereas, the dishonoured cheque handed over by the accused to the complainant did not bear the signatures of both partners, and nothing was available on record that the Company had authorized the accused to issue the cheque in his personal capacity---Controversy as to payment of loan (on account of which the cheque had been issued) was allegedly between the complainant and the accused and not between the Company and the complainant---Grievance of the complainant was, therefore, against the accused and not against the Company---Memorandum governing the right of the Company, although, provided that any cheque issued by the accused/Director would be acceptable by the Company, but neither said document had been exhibited during the trial, nor had the same been put to the accused in his statement under S. 342, Cr.P.C; said document, therefore, the same had no evidentiary value---Complainant had failed to prove the Account, in respect of which the cheque had been issued, to be the personal Account of the accused---None of the two partners of the Company had been examined--- Appeal against acquittal was dismissed accordingly.

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

----S. 342---Power to examine accused---Principle---Any piece of evidence on which the prosecution relies, if not put to an accused in his statement under S. 342, Cr.P.C. would be of no help for the prosecution, as the same has no evidentiary value.

Mohib Jan Salarza for Appellant.

Mian Arshad Jan, A.A.-G. for the State.

Mehboob Shah for Respondent.

Date of hearing: 30th November, 2015.

2016 P Cr. L J 1665

[Peshawar]

Before Assadullah Khan Chamkani, J

ANAS KHALIL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 399-P of 2015, decided on 29th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 365 & 412---Criminal Procedure Code (V of 1898), S. 235---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd; kidnapping or abducting with intent to secretly and wrongfully confine a person; dishonestly receiving stolen property in the commission of dacoity---Appreciation of evidence---Joint trial for more than one offences not conducted---Effect---Place of inquiry or trial where scene of offence was uncertain or not in one district only or where offence was continuing or consisted of several acts/Transfer of trial from one Province to another Province---Deceased had been first abducted from Peshawar (KPK) for which the accused persons had been charged and thereafter his dead body had been recovered in Chakwal, (Punjab) where a separate FIR had been registered against accused for murder of the deceased; thus, the second episode of the murder of the deceased was in continuation of the first episode of his abduction and the registration of case under Arms Ordinance, 1965 in Chakwal (Punjab) was in continuation of the second episode of the occurrence---Accused, therefore, should have been tried at one trial for each of the offences in terms of S. 235, Cr.P.C.---Trial court, in the charge-sheet, had confronted the accused not only with the accusation of abduction of the deceased but also for his murder, but the court had not framed any charge under S. 302, P.P.C., as the record of the murder case had not been made available on the file of the case by the Investigation Officer---Investigation Officer was under duty to collect all the evidence right from the first episode of the incident of abduction of the deceased till recovery of his dead body or to apply for transfer of the murder case and the case of recovery of the crime weapon for joint trial---Trial Court, had straightway proceeded with the trial of the accused regarding the first episode of the incident, squarely over-sighting the mandate of S. 235, Cr.P.C.---Counsel of the parties acknowledged the illegality and irregularity conducted by both the Investigation Officer and the trial court---High Court, setting aside impugned conviction and sentence, remanded the case for de novo trial---High Court, in terms of S. 182, (2), Cr.P.C. directed discontinuation of proceedings in both cases registered in Chakwal (Punjab) and transfer of the cases from Chakwal to the trial court at Peshawar (KPK)---Appeal was allowed accordingly.

Hussain Ali for Appellant.

Waqar Ahmad Khan, A.A.-G. for the State.

Akber Khan for the Complainant.

Date of hearing: 29th February, 2016.

2016 P Cr. L J 1696

[Peshawar]

Before Qaiser Rashid Khan, J

ABDUL SATTAR---Petitioner

Versus

The STATE and another---Respondents

Cr. M./B.A. No. 948-P of 2016, decided on 20th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.365, 511 & 337-A(i)---Haraabah, kidnapping or abducting with intent secretly and wrongfully to confine person; attempt to commit offence, causing Shajjah-i-Khafifah---Bail, grant of---Further inquiry---Initially, complainant, charged the accused along with his seven unknown co-accused to have come over to his shop, thrashed him with which he was injured, and during the scuffle, rupees one million fell from his pocket, which went missing---On the 5th day of such report, the complainant came up with an improved statement under S.164, Cr.P.C.; and charged accused along with co-accused for snatching the cash of rupees one million from him on gun point; and also for their attempt to abduct him in motor car---Site plan though showed the positions assigned to accused and co-accused, but nothing had been mentioned regarding the attempt of alleged abduction---Improvement made by complainant in the statement under S. 164, Cr.P.C., appeared to be an over doing, and was at variance with his initial report---Taking a tentative assessment of the available record, case of accused fell within the purview of further inquiry, and accused was entitled to the concession of bail---Accused was directed to be released on bail, in circumstances.

Naveed Akhtar for Petitioners.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Ghulam Mohy-ud-Din Malik for the Complainant.

2016 P Cr. L J 1720

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

FIAZ---Petitioner

Versus

The STATE and others---Respondents

W.P. No. 535-A of 2016, decided on 31st May, 2016.

Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1)---Power to arrest and detain suspected persons---Station House Officer of the police station informed the High Court that no criminal record was available to show involvement of the petitioner/detainee in any activities, which could be called as prejudicial to law and order situation in the area, and that the impugned order of preventive detention had not been issued on the report of the local police---Deputy Commissioner, even otherwise, could not have resorted to the preventive detention under S. 3 of Maintenance of Public Order Ordinance, 1960, even if there had been complaints pending in the court and perpetual warrants had been issued against the petitioner, as activities attracting other provisions of law were to be dealt with by the courts, and the petitioner, having been proven guilty, was to be punished after due process of law---Preventive detention of the petitioner, in absence of meeting the mandatory requirements of the law, was not warranted---Deputy Commissioner, being the Executive head of the District, had unjustifiably and illegally deprived the petitioner of his fundamental right of freedom and liberty on grounds other than available and valid for the preventive detention---Impugned order, being illegal, without any authority and void ab initio, was, set aside by the High Court---Constitutional petition was allowed in circumstances.

Babar Ilyas and Iftikhar Ahmad Tanoli for Petitioner.

Muhammad Naeem Abbasi, AAG for the State.

2016 P Cr. L J 1733

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

ALLAH DIN and others---Petitioners

Versus

The STATE---Respondent

Cr. M. Q. No. 69-D of 2015, decided on 26th October, 2015.

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

----Ss. 22-A(6) & 561-A---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd; common intention---Petition under S. 561-A, Cr.P.C.---Registration of second FIR on the directions of Justice of Peace after cancellation of the first---Permissibility---Petitioner, on the same allegations, had made a report against the respondents for causing injury on his person, which had been recorded in daily diary and inquired into by the police, whereafter a final report had been submitted before the Magistrate, who had filed the same without proceeding further in the matter---Once the report of the police, containing the same allegations, had been filed by the Magistrate after proper inquiry, the order of Justice of Peace for registration of the FIR was not warranted under law---Justice of Peace had materially erred in accepting the application---Impugned order for registration of FIR was set aside---Application was allowed accordingly.

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

----Ss. 156(1) & 154---Investigation of cognizable offence before registration of FIR---Permissibility---Contention that police was not empowered to investigate the case prior to registration of a case was misconceived---Section 156(1), Cr.P.C. envisaged that any officer-in-charge of a police station might, without the order of a Magistrate, investigate any cognizable case, which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chap. XV relating to the place of inquiry or trial.

Sanaullah Khan Gandapur for Petitioners.

Kamran Hayat Miankhel, Additional A.-G. for the State.

2016 P Cr. L J 1743

[Peshawar]

Before Assadullah Khan Chamkani, J

Dr. YOUNAS---Petitioner

Versus

The STATE and another---Respondents

Bail Petition No. 1121-P of 2015, decided on 9th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-F (ii) & 34---Bail, grant of---Attempt to commit qatl-i-amd, ghayr jaifah badiah, common intention---Cross-versions in form of two FIRs' available on record---Further inquiry---Accused had already lodged FIR, whereunder all injured persons of present FIR had been nominated and alleged to have attempted to commit qatl-i-amd and caused injuries---Place and date of occurrence, parties and police station were all same in both FIR's---FIR's could not be termed as cross-cases---Two versions were available on record, wherein damage in shape of injuries had been caused to both parties---Was yet to be determined during trial as to which of two versions was correct---Accused had arguable case for purpose of bail---Bail was allowed accordingly.

Ghulam Mohyuddin and Shah Faisal Utmankhel for Petitioner.

Mujahid Ali A.A.G. for the State.

Ishtiaq Ibrahim for the Complainant.

2016 P Cr. L J 1766

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem and Muhammad Ghazanfar Khan, JJ

JEHANGIR KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs Department, Peshawar and 16 others---Respondents

Writ Petition No.190-B of 2015, decided on 12th January, 2016.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss.22-A(6), 161 & 265-K---Constitution of Pakistan, Art.199---Qatl-i-amd---Constitutional petition--- Conversion of defence plea of accused FIR---Scope---Statement of accused, could not be made basis for registration of a case, even if it disclosed commission of a cognizable offence---In the present case, complainant had directly and singly charged accused/petitioner for committing murder of the deceased---Charge was duly supported by motive---Another FIR about the same occurrence could be registered but if the statement of the accused under S.161, Cr.P.C., before the Police; coupled with those of the persons, who had sworn affidavits about his innocence, were taken into consideration, same would tantamount to establish and prove his presence on the spot at the relevant time---Glaring contradictions existed between the contents of statements of the petitioner recorded under S.161, Cr.P.C., his application to Superintendent of Police Investigation for fair and impartial investigation; and those narrated in the application moved before the Justice of Peace under S.22-A(6), Cr.P.C.---Subsequent stance of the petitioner, was also at a belated stage, which amounted to an afterthought---Points agitated in the Constitutional petition and those addressed at the bar by the counsel for the petitioner, pertained to the facts of the case, which could not be gone into by High Court in exercise of its extraordinary constitutional jurisdiction---Prima facie, the petitioner was linked with the commission of offence; any observation made by High Court at such a stage, would prejudice case of either party during trial---Innocence or otherwise of the petitioner, could properly be adjudged when pro and contra evidence would come on record during trial of the case---Genuineness or otherwise of the affidavits, sworn by the person concerned about the alleged innocence of the petitioner, would also properly be thrashed out when said witnesses would face the test of cross-examination at trial---When the petitioner, could move the Trial Court under S.265-K, Cr.P.C., constitutional petition in the given circumstances and facts of the case was not maintainable.

Ward Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539; Human Rights Case No.19526-G of 2013 decided on 24th July 2013 2014 SCMR 83 and Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

Pir Liaqat Ali Shah for Petitioner.

Saifur Rehman Khattak, Additional A.G. for Respondent No.1.

Anwarul Haq for Respondents.

2016 P Cr. L J 1781

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

ALI ASGHAR---Petitioner

Versus

The STATE and another---Respondents

Cr. M. No. 185-A of 2016, decided on 5th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.18-B & 22-B---Sending people abroad for employment by false recruitment agent---Bail, refusal of---Accused who remained at large, was declared proclaimed offender, and perpetual warrant of arrest was issued against him---Accused, was not an overseas employment promoter, but he committed fraud and cheating by extorting handsome amount from different innocent persons by luring them into employment abroad and then going into hiding, and resurfacing after about three years of the registration of criminal case against him---Accused, had not furnished any explanation, let alone plausible explanation for his such a prolonged absconsion---Prima facie, case against accused, connected him with the commission of offence in the light of the statement of affected person---Offence with which accused had been charged, fell within the purview of prohibitory clause contained in S.497, Cr.P.C.---Case against accused was still under investigation as supplementary challan had not been submitted against him---No ground existed to extend concession of bail to accused---Bail petition was dismissed, in circumstances.

2005 YLR 3069; 2001 PCr.LJ 588; 2011 PCr.LJ 1214 and Muhammad Nazir v. The State Cr. M. No. 214-A of 2016 ref.

Abdul Saboor Khan for Petitioner.

Aurangzeb Mughal, Deputy Attorney General for Pakistan and Muhammad Sarwar Tanoli for Respondents.

2016 P Cr. L J 1790

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

NISAR AHMAD---Petitioner

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No. 30-M of 2016, decided on 8th June, 2016.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd; dacoity, armed with deadly weapon; common object---Bail, cancellation of--- Principle of consistency--- Applicability---Abscondence---Effect---Principles---Accused and co-accused had been directly charged by the complainant for murder of his daughter, who had been done to death in a brutal manner by giving her electric shocks---Court below, while granting bail to the accused, had totally misread the material available on the record, as the role of the accused was considerably different and distinguishable from the role of the co-accused, who had been granted bail by the High Court---Accused, during his statement under S. 161, Cr.P.C, had admitted that he was part of the unlawful assembly with a specific role---Statement of the accused recorded under S. 161, Cr.P.C could have been taken into consideration, when the occurrence was unseen---Accused had remained absconder for a long period of one year without advancing any explanation in that regard---Abscondence alone although could not be made basis of refusal of bail, when the accused was otherwise entitled to the concession of bail, but, in the context of present case, wherein the deceased was the close relative of the accused, his intentional disappearance soon after the occurrence was tentatively a believable link in respect of involvement in the case---Trial of the case had already commenced---Reasonable grounds existed on the record to believe that the accused was prima facie connected with the commission of the offence---Discretion had been carelessly, erroneously and wrongly exercised by the Additional Sessions Judge in favour of the accused by considering the principle of consistency in a very casual manner---Court below had enlarged the accused without taking into consideration the role of each and every accused as well as gravity of the offence---Impugned bail granting order was, therefore, recalled---Application for cancellation of bail was allowed accordingly.

Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another 2012 SCMR 1949 rel.

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

----S. 497(5)---Bail, cancellation of---Principles---Bail once granted was not to be ordinarily cancelled, because the principle of cancellation and grant of bail are different---Courts have to be slow in cancelling bail, yet there is no absolute bar when sufficient material is available on record, which prima facie connects the accused with the commission of the offence.

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

----S. 161---Examination of witnesses by police---Statement of accused recorded under S. 161, Cr.P.C.---Relevance---Accused, during his statement under S. 161, Cr.P.C., had admitted that he was part of the unlawful assembly with specific role---Statement of the accused recorded under S. 161, Cr.P.C. could have been taken into consideration, when the occurrence was unseen one.

Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another 2012 SCMR 1949 rel.

Abdul Halim Khan for Petitioner.

Aurangzeb Khan and Rafiq Ahmad, Assistant Advocate-General for Respondents.

2016 P Cr. L J 1815

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

SADAM and another---Respondents

Cr. A. No. 490-P of 2013, decided on 2nd February, 2015.

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

----Ss. 417(2-A) & 410---Appeal against acquittal---Scope---Consideration for interference in appeal against acquittal and in appeal against conviction, were altogether different---Judgment of acquittal, could not be upset sparingly as accused would enjoy double presumption of innocence; one relating to the pre-judgment stage, that every accused was innocent till proved otherwise; and the other one through a judicial verdict.

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

----S. 5---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)---Possessing explosive material---Appeal against acquittal---Reappraisal of evidence---No illegality, infirmity or improbability was found in the impugned judgment of acquittal passed by the Trial Court, as it had been passed strictly in line with the settled principles of law---Trial Court, disbelieved the ocular version furnished by prosecution witnesses, by holding that they were not only found contradicting each other on material facts, but also found at variance about places of recovery of material---Record was silent about any search warrant obtained from the competent court for conducting raid on the premises---No independent witness i.e. Nazim or Elder of the locality had been associated during raid, which was clear violation of S.103, Cr.P.C.---Live rounds of different bore allegedly recovered, were sent to Fire Arms Expert after delay of 3 days; and were received in Forensic Science Laboratory after delay of 9 days, for which no explanation had been offered by the prosecution---Nothing was on record to show as to in whose safe custody said five rounds were lying during the period---Recovered explosive materials were examined in Bomb Disposal Unit after about two months, despite those were stated to be alive and dangerous---Bomb Disposal Expert, who examined the explosive material, had not been examined by the prosecution, which had made prosecution case doubtful---Trial Court, lawfully and consciously considered all said facts before formulating an opinion of innocence in favour of accused, which was not open to any exception---Reasons recorded by the Trial Court for the acquittal of accused, were in line with the evidence on record and circumstances mentioned therein---No defect was found in the reasoning recorded by the Trial Court as court had acted strictly in accordance with law and principles governing the safe administration of criminal justice.

Sikandar Hayat's case 1995 SCMR 616 and Noora and another v. The State PLD 1973 SC 469 ref.

Mian Arshad Jan, AAG for the State.

Hizar Hayat for Respondents.

2016 P Cr. L J 76

[Balochistan]

Before Mrs. Syeda Tahira Safdar, ACJ and Muhammad Kamran Khan Mulakhail, J

MUHAMMAD ANWAR---Petitioner

Versus

SHO and 2 others---Respondents

C.P. No. 731 of 2015, decided on 13th August, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 173 & 540---Constitution of Pakistan, Art. 199---Constitutional petition---Reinvestigation---Ex-officio Justice of Peace, jurisdiction of---FIR was registered and investigation was conducted on the complaint of petitioner---Petitioner was not satisfied with the investigation, preferred an application before Ex-officio Justice of Peace for direction to reinvestigate the matter---Ex-officio Justice of Peace dismissed the application---Validity---Door of investigation could never close on submission of police report before court and it remained open for discovery of true facts even during course of trial---Petitioner approached wrong forum, who instead of applying to Trial Court for the purpose, approached Ex-officio Justice of Peace---Petitioner should have approached the Trial Court to get examined crime weapon with recovered empties and for production of witnesses who were not associated with the investigation---Sufficient powers were available to Trial Court under the purview of S. 540, Cr.P.C.---Petitioner having failed to avail remedy provided by law, High Court declined to interfere in the matter as no illegality or irregularity was pointed out---Petition was dismissed in circumstances.

Amanullah Batezai for Petitioner.

Date of hearing: 5th August, 2015.

2016 P Cr. L J 482

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

ABDUL HALEEM and another---Petitioners

Versus

The STATE and 2 others---Respondents

Criminal Revision No.117 of 2015, decided on 2nd November, 2015.

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

----Ss. 497(2) & 497(5)---Bail, cancellation of---Benefit of doubt---Scope---Without availability of strong, cogent and convincing grounds, bail cannot be cancelled---Benefit of any doubt arising out even at bail stage should be termed as question calling for further inquiry and accused becomes entitled for grant of bail.

(b) Administration of justice---

----Criminal trial--- Principle---Each criminal case has its own features and is required to be decided on its own merits independently.

Haji Muhammad Nazir v. The State 2008 SCMR 807 rel.

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

----S. 497---Fresh bail application---Scope---Fresh bail application can be moved on fresh ground at a subsequent stage---Law of bail does not impose any embargo on filing of successive bail applications, therefore, order passed on successive bail applications does not amount to review of earlier order passed on bail application.

Ali Sheheryar v. The State 2008 SCMR 1448 rel.

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

----Ss. 497 & 498---Bail---Different sentences---Scope---For purpose of bail, when alleged offence for which accused is charged, entails two quantum of sentences, the lesser has to be considered while deciding question of bail---When offence is punishable with imprisonment or with fine, at the bail stage the offence should not be presumed as non-bailable because it is entirely possible that at final conclusion, if accused is found guilty and court punishes him with fine only, his incarceration as under trial prisoner would not be justiciable.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 337-L---Hurt---Bail, cancellation of---Bail granted by Trial Court to accused persons was cancelled by Lower Appellate Court---Validity---According to FIR and medical certificate, complainant only sustained internal injuries and after medical treatment complainant did not remain hospitalized---Injuries attributed to accused were within the purview of other hurts punishable under S. 337-L, P.P.C.---Complainant/injured witness did not disclose that injuries caused to him in any way endangered his life or caused him to remain in severe bodily pain for twenty days or more or had rendered him unable to follow ordinary pursuits of life for twenty days or more---Injuries sustained by complainant were covered by S. 337-L(2), P.P.C. which was bailable in nature---Accused persons could not be kept behind the bars as mere punishment for an offence which was bailable in nature and fell within the definition of S. 337-L(2), P.P.C.---High Court set aside the order passed by Lower Appellate Court and restored that of Trial Court--- Petition was allowed in circumstances.

State through Advocate-General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 and The State v. Rafiq Ahmed Channa 2010 SCMR 580 ref.

Syed Manzoor Shah for Petitioners.

Muhammad Aamir Lehri for Respondent No.2.

Abdul Sattar Durrani, Additional Prosecutor-General for the State.

Date of hearing: 30th October, 2015.

2016 P Cr. L J 522

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

The STATE through Public Prosecutor, ATA and others---Appellants

Versus

ABDUL BARI and others---Respondents

Criminal Acquittal Appeals Nos.285 to 297 of 2012, decided on 26th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 436, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 25--- Pakistan Arms Ordinance (XX of 1965), S.13-D---Criminal Procedure Code (V of 1898), Ss. 417 & 540---Qatl-i-amd, attempt to commit qatl-i-amd, mischief by fire or explosive, rioting armed with deadly weapons, terrorism and recovery of unlicensed weapons---Appreciation of evidence---Appeal against acquittal---Failure to produce case property---Material witness, summoning of---Negligence of Special Prosecutor---Accused persons were arrested and after recovery of unlicensed weapons from their possession, recovery memos were attested by prosecution witnesses, who were cited as prosecution witnesses in challan---Due to negligence of Special Prosecutor neither those material witnesses were examined nor case property was produced---Trial Court after conclusion of trial acquitted all accused persons---Validity---Trial Court while dealing/passing judgment had completely ignored the principal objective with which provision under S.540, Cr.P.C. was brought into the statute---Trial Court while conducting trial had not even bothered to verify whether prosecution exhausted its material witnesses along with the case property, therefore, judgment passed by Trial Court could not be sustained and the same was set aside---High Court directed Trial Court to declare complainant as hostile and record the statements of attesting witnesses of recovery memos along with case property---High Court further directed Trial Court to provide opportunity to parties to produce their evidence and to decide the case afresh---Appeal was allowed accordingly.

1972 SCMR 672; Farrukh Sayyar and 2 others v. Chairman, NAB Islamabad and others 2004 SCMR 1; AIR 1976 SC 202; Mukhtar Ahmad v. The State 2003 SCMR 1374 and Muhammad Zahar v. Muhammad Iqbal and others PLD 1984 SC 95 rel.

Malik Sultan Mehmood, Special Prosecutor, ATA for Appellants (in Criminal Acquittal Appeals Nos. 285 to 297 of 2012).

Mudassir Nadeem and Adnan Ejaz for Respondents Nos.1, 2, 3, 10 and 11 (in Criminal Acquittal Appeal No. 285 of 2012).

Sardar Ahmed Haleemi for Respondents Nos.4 to 9 (in Criminal Acquittal Appeal No. 285 of 2012).

Mudassir Nadeem and Adnan Ejaz for Respondents (in Criminal Acquittal Appeals Nos. 286, 287, 289 and 297 of 2012).

Sardar Ahmed Haleemi for Respondents (in Criminal Acquittal Appeals Nos. 288, 292 and 293 of 2012).

Muhammad Ashraf Bazai for Respondents (in Criminal Acquittal Appeals Nos. 290, 291, 294, 295 and 296 of 2012).

Date of hearing: 30th October, 2015.

2016 P Cr. L J 865

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

AKHTAR MUHAMMAD---Petitioner

Versus

ASSISTANT COMMISSIONER KILLA ABDULLAH and 3 others---Respondents

C.P. No. 963 of 2014, decided on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Balochistan Levies Force Act (IV of 2010), Ss. 10 & 9---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Ex-Officio Justice of Peace---Order to change investigation---Scope---Section 10(5) of Balochistan Levies Force Act, 2010 did not bar exercise of powers available to Ex-Officio Justice of Peace for entertaining application under S. 22-A, Cr.P.C.---Procedure provided in Code of Criminal Procedure, 1898 was to be adopted by the Investigating Officer as described by S. 9 of Balochistan Levies Force Act, 2010---Serious allegations of mala fide and exercise of influence and pressure had been leveled against the Investigating Officer---Nothing was on record as to why the proceedings were held with a delay of one month by the Investigating Officer---Discrepancies on the part of Investigating Officer and allegation leveled against him could be believed---No bar existed on investigation and re-investigation of a case already before a Trial Court---Ex-Officio Justice of Peace could order for re-investigation with change of Investigating Officer in exercise of powers under S. 22-A, Cr.P.C.---Investigation of the case was transferred from Investigating Officer to the Crimes Branch with the direction to re-investigate the matter and submit police report before the Trial Court within the stipulated period of fourteen days---Trial Court was directed not to further proceed with the matter till receipt of challan---Constitutional petition was disposed of in circumstances.

Muhammad Yousaf v. State 2000 SCMR 453 and Atta Muhammad v. Inspector General Police (West Pakistan) Lahore and others PLD 1965 (W.P.) Lahore 734 rel.

Mohi-ud-Din Achakzai for Petitioner

Amir Hamza Mengal Deputy Prosecutor-General for Respondents.

Date of hearing: 3rd November, 2015.

2016 P Cr. L J 895

[Balochistan]

Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ

MUHAMMAD ARIF---Petitioner

Versus

The NATIONAL ACCOUNTABILITY BUREAU through Director-General, Cantt., Quetta---Respondent

C. P. No. 682 of 2015, decided on 4th January, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b), 18(g) & 24(b)---Corruption and corrupt practices---Bail sought on the ground of delay in conclusion of trial---Scope---Accused was arrested by National Accountability Bureau on the allegations that he used ATM cards of other account holders for encashment of crime proceeds---Validity---Trial Court adjourned the matter due to non-appearance of counsel of the accused or on his request---Delay at the trial had occasioned due to conduct of counsel of the accused---All the offences under National Accountability Ordinance, 1999 were non-bailable---Bail could not be granted under S. 497, Cr.P.C. to an accused facing charges under National Accountability Ordinance, 1999---Accused could not claim grant of bail as a right on the statutory ground of delay in conclusion of trial---High Court in exercise of constitutional jurisdiction, could exercise power for granting bail to an accused for offences under National Accountability Ordinance, 1999 in appropriate circumstances---Such power of High Court was discretionary in nature---Accused remained fugitive from law as he did not associate/cooperate during the inquiry as well as investigation---Sufficient material/evidence was available against the accused and discretionary power for grant of bail on the ground of delay in conclusion of trial could not be exercised in favour of accused---Trial Court was directed to fix the case on weekly basis and examine maximum possible prosecution witnesses on each date of hearing and conclude the trial within a specified period---Constitutional petition was dismissed in circumstances.

Kaleemullah Quresh for Petitioner.

Muhammad Afzal Harifal, Senior Prosecutor NAB for Respondent.

Date of hearing: 23rd December, 2015.

2016 P Cr. L J 1325

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J

MUHAMMAD HANIF---Petitioner

Versus

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

C.P. No. 1235 of 2015, decided on 14th January, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18(g), 24 & 9(v)(ix)(xii)---Penal Code (XLV of 1860), Ss. 468 & 471---Forgery for the purpose of cheating, using as genuine a forged document and corruption and corrupt practices---Bail, refusal of---Contention of accused for grant of bail was that considerable time would consume in completion of trial---Validity---Second application seeking bail on the same ground had been declined---No new ground for bail was available to the accused---Constitutional petition was dismissed in circumstances.

Amir Masih v. The State 2013 SCMR 1059 rel.

Raja Rab Nawaz and Barrister Adnan Kasi for Petitioner.

Chaudhry Mumtaz Yousuf, Deputy Prosecutor General NAB and Riaz Akhtar Tareen, Additional Deputy Prosecutor General NAB for the State.

Date of hearing: 6th January, 2016.

2016 P Cr. L J 1454

[Balochistan]

Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ

GUL BARAN---Appellant

Versus

UMER KHAN and another---Respondents

Criminal Acquittal Appeal No.297 of 2015, decided on 31st May, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Act done in furtherance of common intention---Ocular account of the eye-witness had not indicated any overt act on part of accused, and his mere presence along with the other accused [since convicted] had been shown---Accused had been neither involved in any motive part of the prosecution story, nor found facilitating the main accused [since convicted] in any manner---In absence of motive against the accused, his presence with the main accused [since convicted], without any overt act, could neither attract his participation in furtherance of common intention, nor was there any other circumstantial evidence to connect him to the crime---Attending circumstances of the prosecution case had nowhere indicated any intent of the accused---In absence of premediation, planning or preparation, the very fact that the accused was present along with the main accused [since convicted] in the Bazar was not sufficient to attribute common intention to him, when the appearance of the complainant party at the scene was a matter of chance---Benefit of doubt, in absence of common intention, had rightly been extended to the accused---No misreading and non-reading of evidence or any perversity was found in the impugned judgment of acquittal to warrant interference---Appeal against acquittal was dismissed accordingly.

Sher Khan v. The State 1991 SCMR 241 and Hassan v. The State 1969 SCMR 454 rel.

Zahoor Ahmed Baloch for Appellant.

Date of hearing: 4th April, 2016.

2016 P Cr. L J 1711

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

STATE through DPG---Appellant

Versus

MUHAMMAD RAFIQUE through Naib Tehsildar---Respondent

Criminal Acquittal Appeal No.S-160 of 2013, decided on 28th November, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----Ss. 13(e) & 14-A---Criminal Procedure Code (V of 1898), Ss.417, 190 & 249-A---Possessing unlicensed arms---Appeal against acquittal---Jurisdiction of Magistrate to try offence---Kalashnikov along with three magazines containing 176 live cartridges were recovered from accused---Challan of the case was submitted but Judicial Magistrate, instead of transmitting the challan of the case to the Sessions Judge/Trial Court, retained the same, and on receiving application under S.249-A, Cr.P.C., acquitted accused through impugned order---Validity---Magistrate under S.14-A of Pakistan Arms Ordinance, 1965, had jurisdiction to try the offences punishable under Ss.13 & 14 of Pakistan Arms Ordinance, 1965, except the offences referred in the Proviso to S.13 of the Ordinance---Kalashnikov, which was an automatic weapon, fell within the proviso to S. 13 of Pakistan Arms Ordinance, 1965---Magistrate, in circumstances, had no jurisdiction to try the same---Trial and proceedings conducted by the Magistrate, were 'coram non judice'---Subject to subsection (2) of S. 190, Cr.P.C., Judicial Magistrate was bound to send the case to the Court of Session for trial without any evidence---Impugned order of acquittal of accused, did not contain any reason or ground for the same---Magistrate, did not even mention the detailed facts of the case for forming an opinion---Order of the Magistrate was not at all a speaking order which in no manner could be called 'judicial order within the parameters of law'---Order in question was passed in hasty manner, without adhering to the relevant provisions of law---Impugned order being sketchy, non-speaking and devoid of reason assessed without jurisdiction, was set aside and case was remanded to Judicial Magistrate of its onward transmission to the concerned Sessions Judge for de novo trial.

Mehar Khan v. Yaqoob Khan 1981 SCMR 267 rel.

Muhammad Iqbal v. Secretary Ministry of Industries of Pakistan PLD 2004 SC 413 ref.

Jameel Akhtar, Deputy Prosecutor General for Appellant.

Muhammad Ashraf Abro for Respondent.

2016 P Cr. L J 1726

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD SALEEM---Appellant

Versus

KAREEM KHAN and 4 others---Respondents

Criminal Acquittal Appeal No.S-29 of 2014, decided on 28th November, 2014.

Penal Code (XLV of 1860)---

----Ss. 337-A, 354, 504 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Causing Shajjah, assault or criminal force to woman with intent to outrage her modesty, intentional insult with intent to provoke breach of peace, common intention---Appeal against acquittal---Reappraisal of evidence---Inordinate delay of about 11 hours in reporting the matter and registration of FIR, was not satisfactorily explained; which had shown that the FIR was lodged after deliberation and consultation---Witnesses, deposed that they themselves did not witness the alleged occurrence, nor alleged quarrel took place in front of them---Complainant, had made dishonest improvements in his statement and he was not an eye-witness of the alleged occurrence, and his statement was based on hearsay version---Alleged injured witness, did not appear, even in reply to application filed under S.249-A, Cr.P.C., despite ten consecutive adjournments---Presumption would be drawn against the prosecution that said witness would not have supported the complainant's version---In case of non-appearance of witness, presumption of innocence would necessarily be drawn in favour of accused on the analogy that the witness was no more interested in prosecution against accused---No conviction under qisas and diyat could be recorded, when such witness himself/herself did not appear---Pendency of trial, would not serve any useful purpose in that regard---Complainant, was neither aggrieved person nor the injured was a person of tender age, on whose behalf the father being Wali, could assail the acquittal---Appellant, not coming within the category of the person aggrieved, appeal filed by him was not maintainable---Accused after his acquittal would carry double presumption of innocence in his favour---Same could not be lightly interfered until and unless it was found that impugned judgment of acquittal was perverse, shocking or ridiculous.

Manzoor and others v. The State 1992 SCMR 2037; Asghar Ali alias Sabah and others v. The State 1992 SCMR 2088 and Payo Khan v. sher Biaz 2009 SCMR 803 rel.

Nazeer Ahmed v. Abid Ahmed 2010 PCr.LJ 914 ref.

Hasnain Iqbal Minhas for Appellant.

Nemo for Respondents.

2016 P Cr. L J 1793

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail, J

SAADULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.139 of 2014, decided on 5th January, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss.396, 147, 148 & 149---Dacoity with murder, rioting, common object---Bail, refusal of---Accused had been nominated in the FIR with specific role of firing with allegation that he along with more than five persons, conjointly committed a dacoity, murdering a person and injuring witness---Every one of them was equally liable for the offence committed by any one of them---Unexplained abscondance of accused, could be considered as corroborative piece of evidence, which prima facie, had shown involvement of accused---Recovery of 35 empty cartridges of Kalashnikov and 11 empty shells of L.M.G., corroborated the statement of the complainant---Motive, though was not alleged in the FIR, but the allegation of dacoity, itself was sufficient to be considered as motive towards commission of offence; followed by murder of one person and injuring the prosecution witness---Unnatural death of the deceased and the injuries caused to the prosecution's witnesses, were corroborated by postmortem report and medical certificate---Substitution of culprits, was not possible; it was a rear phenomenon where a witness, whose close relative had been murdered would substitute accused with innocent person---Delay of about eight hours in registration of FIR, was reasonably and satisfactorily explained---After unexplained abscondance of accused for about 18 months, recovery of any lethal weapon was not possible---Challan in the case had already been submitted, and statements of witnesses were being recorded---Offence under S.396, P.P.C., was non-bailable---Rule of consistency did not apply in two different cases; that ground agitated on behalf of accused, was not worthy of consideration---No reasonable ground existed in favour of accused to admit him to bail, bail application was dismissed.

Tariq Bashir v. State PLD 1995 SC 34; Muhammad Imran v. State 2014 PCr.LJ 456; Farzana v. SHO 2014 PCr.LJ 460; Shahzaid Kamal v. State 2008 PCr.LJ 1606; Habibullah v. State 2007 YLR 216; Muhammad Saleem v. State 2007 YLR 1551; Muhammad Aslam v. State 2010 YLR 712 and Khizar Hayat v. The State 2011 SCMR 429 ref.

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

----S. 497(2)---Bail---Benefit of reasonable doubt---Scope---Each and every criminal case could be brought within the purview of further inquiry and same could be considered as a reasonable ground for admission of an accused to bail---Question of benefit of reasonable doubt, was necessary to be determined, not only while deciding the question of guilt of an accused, but also while considering the question of bail, because there was a wide difference between the jail life and free life---Benefit of reasonable doubt about occurrence itself, identity of accused, part allegedly played by him in the occurrence, his presence on the spot, and the question of his vicarious liability, would go to him even at bail stage.

Shah Muhammad Jatoi for Applicant.

Miss Sarwat Hina, Additional Prosecutor General for Respondent.

2016 P Cr. L J 1854

[Balochistan (Sibi Bench)]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Kamran Khan Mulakhail, J

FAQEER MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Jail Application No. (S) 127 of 2014, decided on 11th February, 2015.

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

----Ss. 35 & 397---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Haraabah with murder, possessing unlicensed arms---Sentence in case of conviction of several offences at one trial---Scope---Applicant/accused had sought concurrence of sentences awarded in two cases of Haraabah and possessing unlicensed arms---Applicant, initially was awarded punishment of death under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but subsequently his sentence of death was reduced to that of imprisonment for life---Applicant under S.13(e) of Pakistan Arms Ordinance, 1979 was awarded sentence of 4 years' R.I.---Applicant, had sought his conviction to run concurrently, instead of consecutively---Under S.35, Cr.P.C., when a person was convicted at one trial of two or more offences, Trial Court was obliged to sentence him for approved offences, according to the separate prescribed punishment---Such punishment when consisting of imprisonment, would commence one after the expiry of the other, unless, the court directed that such punishments would run concurrently---Sentences of imprisonment in two or more offences tried at one trial would run consecutively and direction that such punishment would run concurrently, was an exception---Provisions of S.35, Cr.P.C., was only applicable, when a person was convicted at one trial of two or more offences---In the present case, both the offences, were committed with distinct and separate criminal objectives sought to be achieved at different points of time; in such circumstances justification to seek concurrent running of all the offences, in peculiar circumstances, would not arise at all---Trial Court under S.397, Cr.P.C. had ample discretion to direct the subsequent and previous sentences of imprisonment to run concurrently, but in the absence of such direction, the sentences would run consecutively---Where two or more offences not connected, taking place at different times on and with different persons, court could neither in exercise of inherent powers under S.561-A, Cr.P.C., nor in exercise of supervisory jurisdiction under Art.199 of the Constitution, direct or substitute an order for running subsequent sentence concurrently with previous sentence---Involvement of applicant in more than one case had shown his desperate character---Application filed by accused being meritless, was dismissed, in circumstances.

Ali Khan Kakar v. Hammad Abbasi 2012 SCMR 334 and Ghulam Farid v. The State 2013 SCMR 16 ref.

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

----S. 53---Awarding of punishment---Purpose behind infliction of sentence---Purpose behind infliction of sentence, was two fold; firstly, it would create such atmosphere, which could become a deterrence for the people, who had inclination towards crime; secondly, to work as a medium in reforming the offenders---Sentence should be neither so severe that offenders could, out of frustration, become desperate and hardened criminals; nor should it be so mild that it encouraged the offender to commit the offence again---Courts, while judging adequacy of the sentence, were required to consider different factors, such as, previous conviction, circumstances, mode and manners, in which offence, was committed, age and character of offender, heinousness of crime, injury to individuals and the society etc.

Abdul Sattar Durrani, Additional Prosecutor General for the State.

2016 P Cr. L J 1877

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhalil, J

MUHAMMAD AALAM---Petitioner

Versus

MEHMOOD KHAN and another---Respondents

Criminal Quashment Application No.(s)16 of 2014, decided on 27th June, 2014.

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

----Preamble, Ss.2(c), 3, 4, 5, 7 & 8---Criminal Procedure Code (V of 1898), S.561-A---Balochistan Tenancy Ordinance (XXIV of 1978), Preamble & S. 33---Illegal dispossession---Complaint---Quashing of proceedings/order---Petition, had been directed against the interim order of the Trial Court whereby application filed by respondent under S.7 of Illegal Dispossession Act, 2005, was accepted and petitioner/accused was restrained from cultivating land leased out to him by the respondent/complainant---Allegation against petitioner, was that, he, after expiry of agreement of lease in respect of land of the respondent/claimant, was not surrendering land in dispute and was grabbing the same---Claim of petitioner was that, initially land in dispute was leased out to him in 'Ijara', but subsequently same was sold out to him by the complainant and that he had filed civil suit for specific performance against complainant/respondent---Dispute between the parties, did not fall within the purview of the Illegal Dispossession Act, 2005, rather the case of respondent, would come within the purview of Balochistan Tenancy Ordinance, 1978, which had provided a complete procedure for ejectment of tenant---Proceedings initiated in the case under Illegal Dispossession Act, 2005 was coram non judice, because respondent himself had pleaded that petitioner was his tenant/lessee---Petitioner being a lawful occupant of land in dispute as tenant, his case was covered in terms of S.2(c) of Illegal Dispossession Act, 2005---Impugned order passed by the Trial Court was set aside and the proceedings initiated on complaint filed by the respondent before the Trial Court under Ss.3, 4 & 8 of the Illegal Dispossession Act, 2005, were quashed, in circumstances.

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

----Preamble, Ss. 4 & 5(2)---Purpose and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was enacted to protect the lawful owners and occupiers of the immovable property from their illegal and forcible dispossession by the land grabbers, further to discourage the unauthorized and illegal occupants---Said Act, being special law, empowered the court to conduct special investigation within the stipulated period and after receipt of the investigation report the court was required to apply its mind; as to whether the complaint would proceed further under S.5(2) of said Act or not---When the court would reach to the conclusion that a prima facie case was made out for taking cognizance thereafter, the court was required to proceed further and then to pass an interim order, and if the question of dispossession prima facie was not made out; the court was not bound to proceed with the complaint, but the same would be dismissed and the complainant could approach the court of competent jurisdiction for redressal of his grievance---Spirit of Illegal Dispossession Act, 2005, was to proceed against the persons, who were professional land grabbers or members of land mafia, and not against a person who was in lawful occupation.

Anwar-ul-Haq Chaudhry for Petitioner.

Rajesh Kumar for Respondent No.1.

Abdullah Kurd for the State.

2016 P Cr. L J 1524

[Shariat Court (AJ&K)]

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

MUHAMMAD IDREES and another---Appellants

Versus

GHULAM MURTAZA and another---Respondents

Criminal Appeal No.88 of 2012 and 149 of 2013, decided on 7th June, 2016.

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

----Ss. 302(b), 324 & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing badiah---Appreciation of evidence---Sentence, reduction in---Complainant was not an eye-witness of occurrence; but he had lodged the report on the information furnished to him by another witness who allegedly was injured in the same occurrence---No eye-witness was mentioned in the FIR, but two persons had fully owned the prosecution version---One of said persons, who was allegedly injured in the incident, had not been found as "Adil" witness---Other person, was not mentioned as eye-witness in the FIR but he had been examined as such; and defence had not pointed out that he was not present on the spot, or he had not witnessed the occurrence---Said person was natural witness, as his shop was located in the same bazaar and was open at the time of occurrence---Statements of said two persons, had rightly been believed by the Trial Court for awarding punishment of Tazir---Pistol allegedly recovered from the house of accused, having not been sent to Chemical Examiner for analysis, recovery of said pistol could not be believed and accepted, even as corroboratory evidence---Prosecution had failed to prove the motive---Incident had taken place in daylight in busy bazaar, which was open at the time of occurrence, but except one shopkeeper who was relative of the deceased, no other shopkeeper was examined by the prosecution as eye-witness---Sentence awarded to accused by the Trial Court was not proper---Shariat Court observed that no doubt, minimum punishment for taking human life, was Qisas but same had to be awarded when "Nisab" as provided by law was completed---Even for awarding the sentence of Tazir, evidence should be convincing and aboveboard---Sentence of life imprisonment, awarded to accused by the Trial Court, was altered to the extent of sentence already undergone by accused---Accused was ordered to be released forthwith.

Case law referred.

(b) Criminal trial---

----Appreciation of evidence---Recording of some of the witnesses at belated stage, without there being any plausible explanation, was highly doubtful, which had been ruled out from consideration by Superior Courts.

Rahat Ali v. The State 2010 SCMR 584 and Lal Muhammad v. State PLJ 2012 Cr.C. (Quetta) 574 ref.

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

----S. 302---Motive---Prosecution was not found to allege motive---Where motive alleged was not proved, the death sentence could not be awarded.

Hakim Ali and 4 others v. The State and another 1971 SCMR 432 and Ali Hussain v. Mukhtan and another 1983 SCMR 806 ref.

Sardar Shamshad Hussain Khan for Appellant No.2 (in Criminal Appeal No. 149 of 2013).

Raja Muhammad Hanif Khan for the Complainant/Appellant No.2 (in Criminal Appeal No. 88 of 2012).

Ch. Tariq Alam, Assistant Advocate-General for the State.

2016 P Cr. L J 1675

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi and Sadaqat Hussain Raja, JJ

Syed WAQAR HUSSAIN GILLANI and others---Petitioners

Versus

The STATE through Advocate-General Azad Jammu and Kashmir, Muzaffarabad and others---Respondents

Criminal Misc. Petition No. 312 of 2013 and Bail Application No. 422 of 2014, decided on 6th June, 2016.

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

----S. 426---Suspension of sentence---Discretion of court to suspend sentence had to be exercised judiciously by considering the relevant facts and circumstances of the case; without entering into; or commenting upon the merits of the case---Sentence awarded by a court, should not be taken lightly or suspended in routine---Court could suspend the sentence only after considering; whether accused had a prima facie case; and the conviction was likely to be set aside in appeal.

Ch. Muhammad Riasat and another v. Muhammad Asghar and another 2010 SCR 1 ref.

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

----S. 426---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Suspension of sentence and grant of bail on statutory delay---Bail, after conviction in murder case was not allowed to a convict by suspending his conviction and sentence until and unless exceptional circumstances were shown to exist for doing so---Before suspension of sentence and grant bail, the Legislature had imposed an obligation and responsibility upon the court; to first ascertain and examine the cause of delay---Convicted person, could be released by the court on bail, except where it was of the opinion that the delay in the decision of appeal had been occasioned by an act or omission of convict or the other person on his behalf---Such statutory right was subject to the fulfilment of the criteria and decisive factor prescribed under cls.(a) to (c) of subsection (1A) of S.426, Cr.P.C.---Essentially, it was also to be examined, whether person who applied for bail, was not a previously convict offender for an offence punishable with death or imprisonment for life; or a person who in the opinion of Appellate Court was hardened, desperate or dangerous criminal; or was accused of an act of terrorism, punishable with death or imprisonment for life.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302(c), 34 & 458---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S. 20--Qatl-i-amd, common intention, lurking house-trespass or house-breaking by night, haraabah---Suspension of sentence and grant of bail on ground of statutory delay---Delay in decision of appeals, had not occurred due to accused persons, or their counsel---Nothing had been brought on record which could show that accused persons were hardened, desperate or dangerous criminals, or they had been previously convicted offenders---Accused persons were continuously behind the bars for the last four and half years---Accused persons had been sentenced to 10 years rigorous imprisonment, each by Trial Court; and their appeals, had not been decided within a period of two years of their conviction---Accused persons being entitled to be released on bail as per statutory ground, their sentences were suspended and they were released on bail, in circumstances.

Khalid Mahmood v. The State 2000 YLR 163 ref.

Kh. Ataullah Chak for Petitioners.

Sardar Muhammad Hafeez Khan, Additional A.-G. for the State.

2016 P Cr. L J 441

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Masood Ahmed Sheikh, JJ

MUHAMMAD LIAQAT SULEHIRA---Appellant

Versus

S.H.O., CITY POLICE STATION, MUZAFFARABAD and 6 others---Respondents

Civil Appeal No. 262 of 2015, decided on 19th December, 2015.

(On appeal from the judgment of the High Court dated 15-7-2015 in Writ Petition No. 1466 of 2015 and Criminal Application No.101 of 2015)

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

----S. 409---Azad Jammu and Kashmir Prevention of Corruption Act, 1950, Ss. 5(1) & 5(2)---Azad Jammu and Kashmir Anti-Corruption Establishment Rules, 1997---Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, S. 20 & Sched.---Criminal breach of trust by public servant---Quashment of FIR---Scheduled offence, investigation of---Transfer of case from local police to the Anti-Corruption Establishment---Scope---FIR was registered under S. 409, P.P.C. at local police station and during investigation case was transferred to Anti-Corruption Establishment and offence under S. 5(2), Azad Jammu and Kashmir Prevention of Corruption Act, 1950 was added---Validity---Anti-Corruption department was a sister department of Ehtesab Bureau---Any case which was required to be investigated through Anti-Corruption Establishment could not be transferred to it without the order of Chairman Ehtesab Bureau---Investigation of cases of scheduled offences could only be conducted by the order of Ehtesab Bureau who had supervisory jurisdiction over Anti-Corruption Establishment---Anti-Corruption Establishment was competent to investigate the matter in the present case---Deputy Inspector-General of police had no power to transfer any case of scheduled offence---Ehtesab Bureau could investigate and try scheduled offence falling under Azad Jammu and Kashmir Prevention of Corruption Act, 1950---Officer Incharge of police station had power to register FIR on receiving information disclosing commission of cognizable offence---Registration of case by the local police was not barred under Anti-Corruption Rules, 1997---FIR registered against the accused could not be quashed in the present case---Appeal was dismissed in circumstances.

Muhammad Shabbir Ahmed and another v. Ehtesab Bureau, Azad Kashmir through Chief Prosecutor and 16 others 2012 YLR 2207 and Muhammad Yasin v. S.S.P. and others 2004 SCMR 866 rel.

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

----S. 21(4)---Investigation of offence---Scope---Ehtesab Bureau would be responsible for investigation of an offence alleged to have been committed under Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 to the exclusion of any other agency or authority unless any such agency or authority was required to do so by the Chairman Ehtesab Bureau---Chairman Ehtesab Bureau could issue an order for transfer of a case to another agency for investigation.

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

----S. 154---Azad Jammu and Kashmir Anti-Corruption Establishment Rules, 1997---First information report, registration of---Scope---Officer Incharge of police station had power to register FIR on receiving information disclosing commission of cognizable offence---Even registration of case by the local police was not barred under Azad Jammu and Kashmir Anti-Corruption Establishment Rules, 1997.

Raja Sajjad Ahmed Khan, Advocate for Appellant.

Ch. Shoukat Aziz, Additional Advocate-General for Respondents Nos. 1 to 5 and 7.

Date of hearing: 3rd November, 2015.

2016 P Cr. L J 1086

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KAFEEL AHMED---Appellant

Versus

SUPERINTENDENT OF POLICE, DISTRICT HATTIAN BALA and 6 others---Respondents

Criminal Appeal No.1 of 2014, decided on 13th May, 2015.

(On appeal from the judgment of the High Court dated 27-9-2013 in Criminal Misc. No. 129 of 2013)

Criminal Procedure Code (V of 1898)---

----S. 491--- Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42--- Appeal to Supreme Court--- Habeas corpus petition before High Court--- Scope--- When a case had been registered against the petitioner, he was not entitled to file application under S. 491, Cr.P.C.---Appeal was dismissed in circumstances.

Shaukat v. Muhammad Sharafat Khan and another 2008 SCR 574 ref.

Sadaqat Hussain Raja, Advocate for Appellant.

Sardar Pervaiz Akhtar, Advocate and Raja Aftab Ahmed Khan, Advocate for Respondents.

Date of hearing: 13th May, 2015.

2016 P Cr. L J 1572

[Supreme Court (AJ&K)]

Present Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Penal Code (XLV of 1860)---

----Ss. 337, 427, 448 & 452---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 14---