PCRLJ 2017 Judgments

2017 P Cr. L J 1048

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Mrs. Ashraf Jahan, JJ

Dr. TARIQ SHAMIM CHOUDHRY---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Revision Petition No. 1/I of 2016, decided on 7th February, 2017.

Offence of Qaz'f (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471, 476, 500 & 501---Criminal Procedure Code (V of 1898), Ss. 200, 203 & 439-A---Qaz'f, cheating, forgery and defamation---Private complaint, dismissal of---Complainant was aggrieved of order passed by Trial Court whereby private complaint filed by him was dismissed---Validity---Facts narrated in direct complaint were unnatural as petitioner had divorced his wife and her brother had offered his daughter to petitioner for marriage but on the day of such ceremony, he was not present to attend marriage of his daughter---Brother of divorced wife had deposed against his daughter in different courts regarding petitioner having illicit relations with her---Such facts were contrary to norms and social setup in the society---Trial Court had rightly observed that a father could never label his daughter for such allegations unless she was found to be so--- Brother of divorced wife in his examination in chief had earlier deposed about illicit relations between his daughter and complainant but in cross-examination denied such suggestion, therefore, no case of Qaz'f was made out---Revision was dismissed in circumstances.

Mst. Nuzhat Jabin v. Jamil Hussain Shah and 2 others PLD 1996 FSC 15; Abdul Rashid v. Mst. Safia Bibi PLD 1986 FSC 10; Haji Bakhtawar Said Muhammad v. Mst. Dur-e-Shahwar Begum and others 2010 SCMR 681 and Muhammad Humayun v. The State PLD 1997 FSC 5 distinguished.

Abdul Hayee Alvi for Petitioner.

Malik Altaf Hussain Kandowal for Respondents.

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

2017 P Cr. L J 1536

[Supreme Appellate Court, Gilgit-Baltistan]

Present: Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J

Sheikh IQBAL and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No. 11 of 2017 in Cr. P.L.A. No. 35 of 2016, heard on 1st August, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 201 & 561-A--- Arms Ordinance (XX of 1965), S. 13---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 12---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60---Qatl-i-amd---Offences and penalties under the Arms Ordinance, 1965---Transfer of case from Anti-Terrorism Court to Judicial Magistrate---Cases against accused/appellant were registered under Ss.302, 324, 109 & 34 of the P.P.C. and on alleged recovery of weapon, a further charge was registered against accused under S. 13 of the Pakistan Arms Ordinance, 1965 in the FIR---Trial Court under S. 12 of the Anti-Terrorism Act, 1997 read with S. 13 of the Arms Ordinance, 1965 transferred the case relating to recovery of weapon to Judicial Magistrate on ground that the said charge was exclusively triable by the Judicial Magistrate under S. 13 of the Arms Ordinance, 1965---Said order of Trial Court was set aside by Chief Court---Validity---FIR relating to charge under S. 13 of the Arms Ordinance, 1965 was part of the main case and transfer of the said case to the Judicial Magistrate was not sustainable as it was a corroborative piece of evidence in the main case which had been rightly reversed on appeal by the Chief Court, which had inherent powers to do so under S. 561-A, Cr.P.C.---Judicial Magistrate did not follow the proper procedure provided for in the Cr.P.C. and transfer of the case by the Chief Court was not only illegal but also unwarranted---Impugned order having rightly been passed Supreme Appellate Court converted the petition into appeal and dismissed the same in circumstances.

Munir Ahmed, Advocate along with Ali Nazar Khan, Advocate-on-Record for Petitioners.

Advocate-General Gilgit-Baltistan along with Deputy Advocate-General for the State.

2017 P Cr. L J 18

[Gilgit Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

ASAD ULLAH---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous No. 55 of 2016, decided on 23rd June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Anti-Terrorism Act (XXVII of 1997), S.21-H---Qatl-i-amd---Bail, grant of---Accused, neither was nominated in the FIR, nor any other evidence worth reliance was available on record to establish a prima facie case against him, except a statement under S.21-H of Anti-Terrorism Act, 1997, and his absconcion---Contention of prosecution that since trial of the case of accused had commenced, concession of bail should not be extended to accused, was repelled---Where trial of the case was in progress and accused was found entitled for the grant of bail, he could not be denied such concession on the pretext of practice, as right would prevail over the practice---Detention of accused in jail over a period of three years, without any substantial progress in trial, would militate against the spirit of law, and would show lethargic and unwarranted attitude of the court---Case of under trial prisoner, would be taken up on day to day basis---Bail was allowed to accused, in circumstances.

Muzaffar Uddin for Applicant.

Dy. Advocate General for the State.

2017 P Cr. L J 69

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

ALAM JAN---Petitioner

Versus

FIA POLICE STATION, GILGIT and another---Respondents

Criminal Miscellaneous 48 of 2016, decided on 7th September, 2016.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 4, 9, 19(3) & 23--- Criminal Procedure Code (V of 1898), S. 561-A--- Illegal business of money changer--- Quashing of FIR/proceedings---Section 19(3) of Foreign Exchange Regulation Act, 1947, clearly depicted that before carrying out any proceedings under the said Act, there must be a complaint in writing made by a person authorized in that behalf by the Central Government, or by the State Bank of Pakistan, that the contravention had taken place, or likely to take place---Complaint was to be supported by a statement of that person on oath and only after fulfilment of said criteria any proceedings could be initiated against delinquent--- Federal Investigation Agency (FIA), authorities raided the shop of accused along with the heavy contingent of paramilitary forces, arrested him and booked in the offences against the mandate of law; which could not be protected on any pretext---When law required a thing to be done in a particular manner then it must have been done in the prescribed manner and not otherwise---Laws were made for men and men were not made for laws---When the basic spirit of law was violated and the fundamental rights of a citizen were infringed, it was legal and moral duty of the court to come for rescue of victims of high-handedness---Mandatory requirements of law which were pre-requisite if not fulfilled, the entire proceedings, which followed, would be nullity in the eyes of law---In view of illegality committed by State functionaries, proceedings pending in the court of Special Judge Anti-Corruption against accused on the basis of FIR, were quashed by the Chief Court, in circumstances.

Muhammad Baqir for Petitioner.

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

2017 P Cr. L J 127

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

DANISH HAIDER---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 91 of 2016, decided on 16th June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, refusal of---Accused was directly charged in the FIR, with specific attribution of opening fatal shot on the deceased; who was his real uncle---Accused came duly equipped with the weapon of offence at the place of occurrence, which had shown ill design of accused; and intention to commit murder of the deceased---Plea of juvenility of accused was not supported by appending any document---Ground, not taken in bail application could be agitated at the time of arguments---In the present case, ground of juvenility had been pressed for the first time before Chief Court---Weapon of offence; a .30 bore pistol had been recovered from accused, and same had been sent to Forensic Expert for opinion---Post mortem report of deceased, available on file, had further corroborated the factum of death by fire-arm injuries---Sufficient incriminating material, was available on record, which prima facie had connected accused with the crime---When a prima facie case was established from tentative assessment of evidence, discretion for grant of bail was normally not exercised in the cases entailing capital punishment---Accused, was declined bail, in circumstances.

Shahbaz Ali and Abid Hussain for Petitioner.

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

2016 P Cr. L J 223

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

SADAM and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.41 of 2016, decided on 31st March, 2016.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Manufacturing, owning or possessing intoxicant---Bail, refusal of---Huge quantity of charas weighing 1000 grams had reportedly been recovered from accused---Sufficient prima facie evidence showed connection of accused with occurrence---Prosecution had recovered narcotics from accused in presence of prosecution witnesses---Bail could not be granted to accused, in circumstances---Bail was declined.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Manufacturing, owning or possessing intoxicant---Bail, grant of---Police did not recover any narcotics from co-accused---Case between two accused persons was distinguishable---Bail was allowed to co-accused.

Raja Shakeel Ahmed and Saif-ur-Rehman Muqaddam for Petitioners.

Additional Advocate General for the State.

2016 P Cr. L J 244

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

ISFANDIYAR---Petitioner

Versus

The STATE---Respondent

Cr. Revision No. 11 of 2015, decided on 27th April, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497(1), (5) & 561-A---Penal Code (XLV of 1860), Ss.406, 409, 420, 468, 471, 201 & 202---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, causing disappearance of evidence of offence, intentional omission to give information of offence by person bound to inform---Bail, grant of---Recalling bail granting order---Petition for setting aside said order---Judicial Magistrate granted bail to petitioner, but Sessions Judge, who was Trial Court, recalled bail granting order passed by the Judicial Magistrate---Petitioner aggrieved by said order of the Trial Court, had filed petition for setting aside the order---Validity---Impugned order passed by the Trial Court was incorrect, because same was passed without giving hearing to the petitioner---When, the petitioner was on bail in the light of order passed by the Judicial Magistrate, impugned order could not be passed without giving any hearing to the petitioner---Operation of the impugned order was suspended, till the Trial Court gave hearing to the petitioner---Petitioner was directed to appear before the Trial Court with an application for pre-arrest bail---In case petitioner would fail to appear in the Trial Court on or before appointed date, impugned order would become operative with its full force.

Sher Baz Ali Khan for Petitioner.

2016 P Cr. L J 292

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

The STATE---Appellant

Versus

ABDUL WAHID---Respondent

Criminal Appeal No.16 of 2014, decided on 13 November 2015.

Penal Code (XLV of 1860)---

----Ss. 324 & 34---Criminal Procedure Code (V of 1898), S.417---Attempt to commit qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Prosecution evidence was full of contradictions---Two prosecution witnesses had specifically named the assailants in their statements in the court but police had released all said persons under S. 169, Cr.P.C.---Said witnesses had not described any difference between the role of persons, they were nominating for the occurrence---Other prosecution witnesses, who were Police Officials, their statements were not relevant in proof of guilt of accused---Medical report showed that injuries on the persons of the victims, were simple in nature---Police had just filled in the blanks by charge-sheeting accused out of other assailants nominated in the FIR---Appeal against acquittal being meritless, was dismissed, in circumstances.

Deputy Advocate General for the State.

Johar Ali for Respondent.

2016 P Cr. L J 339

[Gilgit-Baltistan Chief Court]

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

JAN NABI, EXECUTIVE ENGINEER and 11 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.10 of 2015, decided on 16th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 406, 409, 420, 471, 201, 202 & 34---Criminal Procedure Code (V of 1898), S. 561-A---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, using as genuine a forged document, causing disappearance of evidence of offence, intentional omission to give information of offence by person bound to inform, common intention---Judicial Magistrate, discharged 11 petitioners out of 12 from the case---Prosecution having not challenged said order of Judicial Magistrate, their acquittal had attained finality---Trial Court through impugned order, having reversed the orders of the Judicial Magistrate, petitioners had filed quashment petition for setting aside impugned order of the Trial Court---Out of 12 petitioners, impugned order would not operate against petitioners, except one petitioner, who was free to move the court for any relief, if so advised---Quashment petition was allowed to the extent of eleven petitioners and petition stood dismissed to the extent of one petitioner.

Amjad Hussain for Petitioners.

2017 P Cr. L J 373

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD ISMAIL---Petitioner

Versus

The STATE---Respondent

No. Cr. Misc. 107 of 2016, decided on 29th September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Juvenile Justice System Ordinance (XXII of 2000), S. 10(7)---Qatl-i-amd, common intention---Bail, grant of---Accused who was juvenile, had sought bail on ground of delay in conclusion of trial---Complainant and his witnesses intentionally avoided to appear before the court just to prolong agonies and miseries of accused---To penalize accused for no wrong act on his part or any one on his behalf and deprive him of the benefits of provisions of S.10(7) of Juvenile Justice System Ordinance, 2000; was illegal---Point of any justifiable delay, which was the result of bona fide acts of an under trial prisoner or his counsel, could not be detected from the period of delay of one year and if said prescribed period had reached, then it was the bonden duty of the court to release such an accused on bail---Accused was likely to complete two years of his continuous detention and his further detention in jail would be against the very spirit of the provisions of Juvenile Justice System Ordinance, 2000--- Accused was admitted to bail, in circumstances.

(b) Interpretation of statutes---

----Construction of a statute should be beneficial to the citizen and if there could be two interpretations of a provision of law in a statute, the one which was consistent with reasons, should be adopted and the one which lead to absurdity or unreasonableness or patent injustice to a citizen, should be avoided---Construction placed on a provision in a statute, should be such as would suppress the mischief and advance the remedy.

Malik Kifayat-ur-Rehman and Abdul Karim for Petitioner.

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

2017 P Cr. L J 425

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE through AD Legal FIA---Appellant

Versus

QASIM ALI---Respondent

Cr. Appeal No.34 of 2016, decided on 27th September, 2016.

Penal Code (XLV of 1860)---

----S. 420---Criminal Procedure Code (V of 1898), S.417(2-A)---Cheating and dishonestly inducing delivery of property---Appeal against acquittal---Appreciation of evidence---Counsel for complainant contended that on the date of hearing of arguments on the application filed under S.265-K, Cr.P.C., he was not in the city and only prosecutor Federal Investigation Agency (FIA) was present and was heard, thus prejudice had been caused to the complainant as his case was not presented properly before the Trial Court---Contention was repelled, as while proceeding to the other city counsel had not submitted any written application for adjournment of the case, nor same was mentioned in the order-sheet of the Trial Court---Hearing of counsel for the complainant was not a mandatory requirement, when the Legal Advisor FIA was present and was given opportunity of hearing---If no application was presented before the Trial Court for adjournment on behalf of the complainant, the Trial Court was not under legal or moral compulsion to adjourn the case, when a notice to Legal Advisor FIA and counsel for the complainant was issued and the date of hearing was already in the knowledge of Legal Advisor and the counsel for the complainant---Widow, in the present case, had been defrauded and she, after death of her husband, was running from pillar to post for justice---Trial Court, disposed of the case in a hasty manner, holding that the statements of remaining two prosecution witnesses, even if recorded, would not prove the case---Such finding of the Trial Court, was not correct, as criminal case could be proved through the statement of a single reliable witness; there was no concept to burry a case at the infancy stage---Certain documents had been collected by the Investigating Officer during investigation of the case; genuineness/otherwise was yet to be scrutinized by the court---Statements of remaining prosecution witnesses, as well as of Investigating Officer, were necessary for just and fair disposal of the case---Appeal against acquittal was allowed and case was remanded to the Trial Court for disposal on merits with directions that Trial Court would summon the remaining prosecution witnesses and would provide level playing field to both the parties to plead their case and decide the matter on merits---Accused being in jail after acquittal, Chief Court granted bail, in circumstances.

Syed Dildar Hussain, AD FIA assisted by Manzoor Hussain, Legal Advisor for FIA.

Ali Dad for Respondent.

2017 P Cr. L J 457

[Gilgit-Baltistan Chief Court (Skardu Bench)]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

GHULAM HAIDER---Petitioner

Versus

GHULAM MOHAMMAD PARVI and another---Respondents

Criminal Miscellaneous No. 82 of 2013, decided on 19th August, 2016.

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

----Ss. 369 & 22-A---Alteration or review of judgment by Chief Court---Scope---Complainant, in the present case, had moved an application for registration of FIR before Justice of Peace who directed the concerned police station for registration of FIR---Accused challenged registration of said FIR before Chief Court by filing writ petition which was quashed by the Division Bench of Chief Court---Validity---Held, there was no concept of review in Criminal Procedure Code, 1898---No floating error had been pointed out in the impugned judgment, which might persuade the Chief Court to review its earlier judgment, which was otherwise barred by law---Petition was dismissed being meritless.

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

----S. 369---Court not to alter judgment---Scope---Court of criminal jurisdiction had been precluded to review/alter the judgment after it was written, signed and announced except to correct a clerical error.

Petitioner in person.

Nemo for Respondent No.1.

Ghulam Mehdi, Prosecutor-General for the State.

2017 P Cr. L J 488

[Gilgit-Baltistan Chief Court (Skardu Bench)]

Before Malik Haq Nawaz, J

Sheikh MEHDI and 2 others---Petitioners

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous No. 1 of 2016, decided on 19th August, 2016.

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

----Ss. 107, 151, 145, 112 & 561-A---Security for keeping peace, arrest for keeping peace, procedure where dispute concerning land likely to cause breach of peace---Complainant (police) had alleged that dispute on land between rival factions was likely to erupt which might result in breach of peace and tranquility---Magistrate bound down both the parties and ordered attachment of property in dispute---Revision petition filed before the Sessions Court was dismissed---Magistrate on receipt of complaint under Ss. 107/151, Cr.P.C. was bound to issue notice to parties which was pre-requisite and mandatory requirement of law---Mandatory procedure under S. 112, Cr.P.C. was not followed which rendered entire proceedings nullity in the eye of law and were quashed by the Chief Court.

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

----S. 112---Order to be made---Scope---Magistrate acting under Ss. 107, 108, 109/110, Cr.P.C. was under obligation to make an order in writing setting forth the substance of information received, the amount of bonds to be executed and the term for which the parties would be bound down

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

----S. 112---Section 112, Cr.P.C. was mandatory in nature.

Basharat Ali for Petitioners.

2017 P Cr. L J 522

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

ISHAQ AHMAD---Petitioner

Versus

The STATE through ANF Police Station Airport Road, Gilgit---Respondent

Criminal Miscellaneous No. 117 of 2016, decided on 2nd November, 2016.

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

----S. 497---Control of Narcotic Substances Ordinance (XLVII of 1995). S. 9(c)---Bail, grant of---Further inquiry---Prosecution story was that ten kilogram heroin was recovered from the possession of accused---Allegedly heroin was recovered from the bags containing walnuts, which were booked by some one else---News regarding recovery of heroin from the bags of walnuts struck head line of the various newspapers of the following day---Said news remained un-rebutted---Receipt of Goods Forwarding Agency from where the consignment was booked by some one else had not been denied by the prosecution--- No concrete steps were taken by the prosecution for arrest of main culprit---Circumstances brought the case of accused within the ambit of further inquiry---Bail was allowed in circumstances.

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

----S. 497---Bail---Judicial notice of news published in newspapers---Scope---Judicial notice of news published in newspapers could be taken, if not rebutted by the concerned authorities.

Amjad Hussain for Petitioner.

Manzoor Hussain, Special Prosecutor ANF for the State.

2017 P Cr. L J 544

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MIR GHANI, SHO POLICE STATION TANGIR, DISTRICT DIAMER---Petitioner

Versus

The STATE---Respondent

Cr. Revision No. 9 of 2016, decided on 3rd August, 2016.

(a) Medical jurisprudence---

----Post-mortem---Scope---Medico-legal or forensic post-mortem was performed on the requisition of a legal authority responsible for the investigation of sudden, suspicious, obscure, unnatural, litigious or criminal death---Legal authority was usually a police officer---Post-mortem was performed to know the cause of death---Consent of relatives was not necessary.

Modi's Medical Jurisprudence and Toxicology, Ch. XII ref.

(b) Medical jurisprudence---

----Academic post-mortem---Scope---Clinical or academic post-mortem was one in which medical practitioners perform a post-mortem with the consent of relatives to know the extent of the illness for which the deceased was treated---Requisition from legal authority was not necessary.

Modi's Medical Jurisprudence and Toxicology, Ch. XII ref.

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

----Ss. 302 & 201---Qatl-i-amd, causing disappearance of evidence---Complainant lodged FIR concerning murder of his son by some unknown persons and presented an application to the Police for not getting the post-mortem conducted on the corpus of deceased---Police accepted the request of complainant and did not take the dead-body for post-mortem---Complainant and SHO (Police Station) were also booked by the Trial Court for causing disappearing of evidence---Validity---Court could take other factors into account---Where prosecution through convincing evidence could establish that death was immediate, proximate and direct cause of injuries without any element of negligence or other intervention, non-performance of post-mortem would not be fatal---Complainant had submitted the application to police in view of long standing custom of the area---Complainant and SHO could not be ordered to stand in the list of accused persons in circumstances.

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

----Ss. 435 & 439--- Revision--- Scope--- Powers conferred by these Ss.435 & 439, Cr.P.C. as a court of appeal were to correct the error, in case of any proceeding the record of which had been called by itself, or otherwise came to its knowledge and where a wrong order in excess of jurisdiction was passed.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence could only describe seat of injuries and weapon used but could not establish the identity of accused.

(f) Criminal trial---

----Medical evidence---Nature---Medical evidence was corroboratory and confirmatory in nature.

Bashrat Ali and Abdul Khaliq for Petitioner.

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

2017 P Cr. L J 555

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

HIDAYAT ALI and others---Petitioners

Versus

ZEESHAN and others---Respondents

Criminal Misc. Nos. 128 and 129 of 2016, decided on 3rd October, 2016.

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

----S. 497(5)--- Penal Code (XLV of 1860), Ss. 147, 148, 506(ii) & 337-A---Rioting, rioting armed with deadly weapon, threat to cause death or grievous hurt and causing hurt---Bail, grant of---Allegation against the accused party was that they had launched attack on the complainant party, when they were working in the disputed property, and caused injuries to two persons---Accused had approached the court for bail before arrest, which was granted and later on was confirmed---Some recoveries had been effected from the accused and non-recovery of remaining incriminating evidence would damage the case of prosecution---Civil suit regarding the possession of disputed land was pending adjudication in the competent court---Contents of FIR had transpired that complainant and his companions were working in the said land when they were assaulted by the accused party---Accused party had claimed in the civil suit that disputed land was in their possession and the complainant party had trespassed and assaulted them and their reaction was justified against the undue aggression---Trial Court, in such situation, was to determine as to which party was the aggressor and which was aggressed upon---Trial court had exercised the discretion in accordance with law in granting bail before arrest---Petition for cancellation of bail being devoid of merits, was dismissed, in circumstances.

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

----S. 497(5)---Bail, before arrest, grant of---Principle---No hard and fast rules could be laid down for grant of bail before arrest as each and every case had its own peculiar circumstances---Courts were custodian of honor and liberty of the people---When courts had come to the conclusion that the intended arrest was tainted with ulterior motive where the culpability of accused was doubtful or debatable, offences were also not heinous, the discretion could validly be exercised in favour of an accused.

Sherbaz Ali Khan for Petitioners.

Rais Khan for Respondents.

Dy. A.-G. for the State.

SHO Police Station Nagar-I present in person along with Record.

2017 P Cr. L J 662

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

ZAFEER AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 28 of 2015, decided on 25th October, 2016.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appreciation of evidence---Delay in conducting identification parade---Effect---Identification parade was conducted after about ten days of the arrest of the accused---No explanation had come on record about such an inordinate delay in conducting the identification parade---Long delay in conducting the identification parade was fatal in the absence of any plausible explanation---Delay might be a factor, which had afforded an opportunity to the prosecution witnesses to see the accused while in police custody and when produced in the court for obtaining remand---Such circumstances had created doubt about the veracity of prosecution case, benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court were set aside accordingly.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appreciation of evidence---Identification parade was not conducted as per law---Effect---Magistrate who had supervised the identification parade did not bother to count the strength of dummies---Names/parentage and addresses of the dummies were not mentioned in the report---Dummies were less than the required number---Sole eye-witness of identification parade had not stated anything during trial about any identification parade held in his presence---Prosecution witness identified the accused while standing inside the cupboard, but no identification parade was held in that manner---Such identification parade was of no avail to the prosecution case in respect of awarding conviction and sentence to accused---Appeal was allowed and conviction and sentence recorded by Trial Court were set aside in circumstances.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Identification parade conducted by incompetent Magistrate---Effect---In the present case, Naib Tehsildar (Magistrate Second Class) was deputed to supervise an identification parade, instead of availability of dozens of Magistrates First Class, who was not competent to supervise the said identification parade---Case was that of murder and identification parade was most important piece of evidence in the case to connect the accused with the alleged offence/crime but due to in-efficiency of the Assistant Commissioner and of the investigating officer who even did not object before the Assistant Commissioner to depute any competent Magistrate, fate of the case had been overturned---Identification parade was held just to fill in the blank, which carried no legal value---Appeal was allowed and conviction and sentences recorded by Trial Court were set aside.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Evidentiary value---Two weapons of offence had been recovered on the pointation of accused---Recovered crime weapons were not sent to Forensic Science Laboratory---Accused was not put any question above expert opinion during his examination under S. 342, Cr.P.C.---Evidence of recovery of crime weapons, in circumstances, had no legal value---Appeal was allowed and conviction and sentences recorded by Trial Court were set aside in circumstances.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art. 27---Qatl-i-amd---Appreciation of evidence---Recovery witnesses---Calendar of witnesses showed that recovery witnesses were picked up from the public, but it was not so---Effect---Statement of said recovery witnesses had indicated that they were police officials---Investigating officer had concealed the identity of the recovery witnesses due to lack of legal knowledge---In the present case, crime weapons were recovered on the pointation of accused---Provision of S. 103, Cr.P.C. was not applicable when recovery was effected on the pointation of accused and such recoveries were admissible in evidence and were covered under Art. 27 of Qanun-e-Shahadat, 1984---Order accordingly.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Ocular account not proved---Effect---Prosecution failed to produce any evidence in order to prove the ocular account---In absence of evidence of ocular account, question of relying on corroboratory/confirmatory evidence did not arise---Evidence of recovery, post-mortem etc. were always read in support of ocular evidence---Prosecution had failed to prove their case against the accused beyond shadow of doubt, benefit of which would be extended in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court were set aside in circumstances.

Asadullah Khan for Appellant.

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

2017 P Cr. L J 689

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

BASHARAT ALI---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No. 142 of 2016, decided on 27th October, 2016.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail, refusal of---Allegation as per FIR was that due to highhandedness and cruel attitude of accused, the lady committed suicide---Accused was nominated in FIR---Accused created environment through his conduct, which compelled the deceased to commit suicide---Deceased lady had contracted marriage with the accused and after marriage, accused started teasing and maltreated the lady---Record showed that deceased lady had died due to haemorrhage and excessive bleeding---Accused was present in the house at the time of incident and watched the tragic occurrence like a silent spectator---Accused did not remove the victim lady to the hospital to save her life, which indicated his ill intention---Negative role/attitude of the accused made him responsible for contributory negligence towards death of deceased---Bail was refused in circumstances.

Raja Zia-ur-Rahman for Petitioner.

Nazir Ahmad for the Complainant.

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

2017 P Cr. L J 696

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

SHOUKAT RASHEED and others---Petitioners

Versus

The STATE through NAB---Respondent

Criminal Rev. Nos.16 and 17 of 2016, decided on 19th October, 2016.

National Accountability Ordinance (XVIII of 1999) [as amended]---

----Ss. 18(g) & 24(b)--- Criminal Procedure Code (V of 1898), S. 265-K---Reference sent on the basis of investigation illegally conducted---Power of court to acquit accused at any stage---Accused had alleged that investigation of the cases had been conducted illegally and trial would be a futile exercise---Validity---Section 265-K, Cr.P.C. was an exception to the general rule relating to the trial but two things would be considered before exercising such discretion under said section, firstly that a fair chance of hearing was to be provided to both the parties and secondly the court had to come to a definite conclusion that on the available material, there was no possibility and probability of conviction of accused for any offence---Recording of evidence was not the requirement of law but at the same time, S. 265-K, Cr.P.C. was not to be pressed into service to stifle the prosecution case at the infancy stage---Legal and factual controversies involved in the case could not be resolved in summery proceedings---Revision petition was dismissed in circumstances.

Raja Shakeel Ahmad for Petitioners (in Criminal Revision No.16 of 2016).

2017 P Cr. L J 703

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE---Appellant

Versus

SHABRANG and 2 others---Respondents

Criminal Appeal No. 33 of 2016, decided on 19th October, 2016.

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

----S. 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14---House trespass, theft liable to tazir---Appeal against acquittal---Appreciation of evidence---Examination of accused under S. 342, Cr.P.C. was conducted in stereo type manner e.g. a question was related to one accused but was put to all the accused persons---Same answer of all the accused in respect of another question did not appeal to prudent mind---Recording of statement of accused was not an empty formality; the questions put and answers given were distinctly to be recorded---Case was remanded by High Court for recording of statement of accused afresh.

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

----S. 364---Examination of accused how recorded---Scope---Provisions of S. 364, Cr.P.C. were mandatory in nature and put a legal obligation to comply with the same while recording the statement of accused under S. 342, Cr.P.C.

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

----S. 342---Statement of accused---Scope---Statement of accused under S. 342, Cr.P.C. was not an empty formality; the questions put and answers given were distinctly to be recorded.

Dy. A.-G. for Appellant.

Mahfooz ul Haq for Respondents.

2017 P Cr. L J 757

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

ZAKIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 41 of 2014, decided on 2nd November, 2016.

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

----Ss.84, 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 464---Qanun-e-Shahadat (10 of 1984), Art. 84---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism---Appreciation of evidence---Insanity and unsoundness of accused---Proof---Contention was that accused was of an un-sound mind and expelled from service due to his mental ailment and on this score, he was entitled to be acquitted---Validity---Provision of S. 84, P.P.C. had provided that nothing was an offence, which was done by a person, who, at the time of doing it, by reason of unsoundness of mind, was incapable of knowing the nature of the act; or that what he was doing, was either wrong or contrary to law---Any person, who would seek the benefit of S.84, P.P.C., must prove that at the time of committing the act, he was of un-sound mind---Accused neither produced any evidence, in that regard, nor there existed anything in black and white beseeching the Trial Court to make a probe into his mental condition---Accused neither raised such plea of his un-soundness before the Trial Court nor any application was submitted for his mental state---Accused failed to prove by placing sufficient cogent and convincing material in the shape of medical evidence that he was insane at the time of commission of offence so as to bring his case within the framework of S. 84, P.P.C.---Appeal against conviction was dismissed in circumstances.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism---Appreciation of evidence---Circumstantial evidence---Allegation against accused was that he kidnapped and murdered the son of complainant aged about three years---No ocular evidence was available in the case, except circumstantial evidence---Complainant had not charged anybody for murder of his son but the statement of three prosecution witnesses showed the presence of accused at the place from where the minor missed and near the place of occurrence from where dead body of the minor was recovered---Said statements had not been challenged---Un-challenged versions of prosecution witnesses about the physical presence of accused at the place of occurrence before and after the incident, was corroborated by the postmortem of deceased, confirmed the death of deceased and supported the circumstantial evidence---Death of minor was result of "violent asphyxia" which had been verified by medical officer---Accused had pointed out the place of occurrence before the Magistrate---Circumstances connected the accused with the commission of offence---Appeal was dismissed in circumstances.

(c) Criminal trial---

----Investigation---Subject of investigation would come within the exclusive domain of the Police/Investigating Agency---Participation of Executive Magistrate in the investigation proceedings was absolutely unwarranted.

(d) Criminal trial---

----Circumstantial evidence---Reliance---Scope---Where ocular account was deficient either because of non-availability of eye-witnesses, or where the occurrence was unseen, direct evidence was not available or where FIR was lodged against unknown culprits, investigating agency, in such circumstances, was left with no other option but to collect, and rely upon circumstantial evidence.

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

----Art. 133---Cross-examination---Object---When a deposition was made by a witness in the court and not challenged by the opposite party in the cross-examination, same would be presumed that the facts deposed had been admitted by the opposite party.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism---Appreciation of evidence---Confession recorded on Compact Disc (CD)---Allegation against accused was that he kidnapped and murdered son of complainant aged about three years---Admittedly, there was no eye-witness of the occurrence in the present case---Prosecution had relied on the evidence of CD, which contained the confessional statement of accused and the manner in which the gruesome murder of child of three years old was committed---Validity---Compact Disc (CD) was played before accused in the Trial Court and the Trial Court was convinced that narration of occurrence by the accused was natural---Evidence of CD was neither shattered nor its admissibility was challenged---Evidence procured through modern device was admissible in evidence under Art.164 of Qanun-e-Shahadat, 1984--- Appeal was dismissed in circumstances.

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

----S. 6(1)(b)---Act of terrorism---Scope---If after the commission of an act, a wave of terror strikes the society, it is more than sufficient to attract the provision of Anti-Terrorism Act, 1997---Terror or fear was a state of mind which keeps one's mind under the continuous apprehension of being insecure.

Muzaffar-ud-Din for Appellant.

Dy. A.-G. for the State.

2017 P Cr. L J 806

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ZAHID ALI and others---Appellants

Versus

FAZIL HUSSAIN and others---Respondents

Criminal Appeals Nos. 31, 32 of 2016, decided on 31st August, 2016.

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

----Ss.223, 224 & 322---Criminal Procedure Code (V of 1898), S.417---Qatl-bis-sabab, escape from confinement or custody by public servant and resistance or obstruction to his lawful apprehension---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Allegation on the accused persons was that they being police officials arrested a person involved in criminal case but he escaped due to their negligent act---Missing person was allegedly threatened by the said police officials to face dire consequences of his misdeeds, which compelled him to commit suicide---Validity---Prosecution witness had charged the accused persons responsible for the death of his uncle---Said prosecution witness kept mum for a period of more than three years from the date of occurrence---First statement of the said prosecution witness was recorded under S. 161, Cr.P.C. after three years of the occurrence and second statement was recorded after four years of the first statement---No proper explanation had been given for non-recording his statement at proper time---Statements of said prosecution witness had shown that he had made some material dishonest improvements with a malicious and sinister motive to bring the case in line with the prosecution story---Such evidence had no legal force and prosecution could not reap any benefit from the same---Attending circumstances of the case had created doubt about the veracity of prosecution story, benefit of which would resolve in favour of accused--Appeal against acquittal was dismissed accordingly.

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

----Ss.223, 224 & 322---Criminal Procedure Code (V of 1898), S.417---Qatl-bis-sabab, escape from confinement or custody by public servant and resistance or obstruction to his lawful apprehension---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Case of two versions---Prosecution had alleged that missing person (in police custody) was threatened by the accused persons (police officials) to face dire consequences of his misdeeds, which compelled him to commit suicide---Prosecution witnesses had alleged that missing person was a frequent visitor of Afghanistan in connection with his business and it had come on record that near the place of occurrence, a road/track leading to Afghanistan was available and missing person was familiar of that track/road leading to Afghanistan---Mere recovery of his jacket/coat hanging over the bridge near the place of occurrence could not be a reason and made basis to believe that missing person committed suicide, especially when prosecution witness of recovery of coat/jacket had disowned the recovery memo---When there were two probabilities, the probability which favours the accused will be accepted---In the present case, no evidence was available that missing person had died, then the weight would be given to the other possibility that missing person had gone to Afghanistan as the said possibility was favorable to the accused persons--- Appeal against acquittal was dismissed in circumstances.

Alamgir v. The State PLD 1995 Kar. 459; Muhammad Khan v. Mula Baksh 1998 SCMR 570; Shahid Abbas v. Shahbaz 2009 SCMR 237; Muhammad Yaqub v. The State 2007 YLR 534; State v. Tanveer Hassan and others 2009 PCr.LJ 1999; Rahat Ali v. The State 2010 SCMR 584; Muhammad Tufail v. Addl. Sessions Judge 2010 MLD 5; Abdul Hamid v. The State 2011 PCr.LJ 895; Amjad Riaz v. Addl. Sessions Judge 2011 YLR 2141 and State v. Abdul Khaliq and others PLD 2011 SC 554 ref.

(c) Criminal trial---

----Two probabilities---When there were two probabilities in a criminal case, one favouring accused, and the other prosecution, one favourable to accused, was required to be taken into consideration.

(d) Criminal trial---

----Evidence---Presumption---Scope---No one could be convicted on the basis of mere presumption---Presumption how much strong could not take place of legal evidence.

Rehmat Karim for Appellants (in Cr. A. No. 31 of 2016).

Dy. A.-G. for the State (in Cr. A. No. 31 of 2016).

Daulat Karim for Respondents (in Cr. A. No. 31 of 2016).

Dy. A.-G. for Appellants (in Cr. A. No. 32 of 2016).

Rehmat Karim for the Complainants (in Cr. A. No. 32 of 2016).

Daulat Karim for Respondents (in Cr. A. No. 32 of 2016).

2017 P Cr. L J 1022

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, CJ and Malik Haq Nawaz, J

Moulvi DILBAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN, SECRETARY MINISTRY OF DEFENCE through Force Commander, Gilgit-Baltistan and 2 others---Respondents

W. Ps. Nos. 209, 210, 211, 212 of 2016, decided on 21st December, 2016.

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

----Art. 71(2)---Pakistan Army Act (XXXIX of 1952) [as amended by Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution (Twenty-first) Amendment Act (I of 2015), Ss.2, 3 & Preamble---Writ petition---Military Courts---Decision of Field General Court Martial---Petitioners assailed conviction and sentences imposed by Military Courts---Validity---Chief Court could not sit as a revisional or appellate Court to review or set aside judgments rendered by a Court of competent jurisdiction, which were created through Constitutional amendment, to eradicate menace of terrorism---Military Courts were established through Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, solely for the purpose of ensuring integrity and security of Pakistan and to eradicate terrorism being launched by hard core terrorists---Trial of hard core terrorists/criminals was not an encroachment on their Fundamental Right and their trial by Military Court was not in violation of Fundamental Right and concept of fair trial---Chief Court declined to interfere in conviction and sentence awarded by Military Court---Writ petition was dismissed in circumstances.

PLD 2015 SC 401; F.B. Ali's case PLD 1975 SC 506; Mrs. Shahida Zaheer Ul Islam Abbasi's case PLD 1996 SC 632; Raja Ishaq Qamar's case PLD 2007 SC 498; Abdul Basit's case 2012 SCMR 1229; Ex-Risaldar Ghulam Abbas's case 2014 SCMR 849; Rana Naveed's case 2013 SCMR 596; Ghulam Abbas Niazi's case PLD 2009 SC 866 and Lt. Col. Munir Gill's case 2014 SCMR 1530 ref.

PLD 2015 SC 369 fol.

Raja Zia-ur-Rahman for Petitioners.

2017 P Cr. L J 1040

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

DIVISIONAL FOREST OFFICER WILDLIFE DEPARTMENT DISTRICT GILGIT---Appellant

Versus

HASHIM WALI---Respondent

Criminal Appeal No. 11 of 2016, decided on 29th August, 2016.

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

----Ss. 561-A, 491 & 497---Inherent power---Scope---Conversion of proceedings---Trial Court was not justified to convert the proceedings under S. 491, Cr.P.C. into the proceeding under S. 497, Cr.P.C.---No inherent powers were available to the subordinate judiciary under Criminal Procedure Code, 1898 to convert one type of proceedings into another type---Inherent powers under S. 561-A, Cr.P.C. were only available to a High Court.

(b) Northern Areas Wildlife (Protection, Preservation, Conservation and Management) Act (V of 1975)---

----Preamble---Criminal Procedure Code (V of 1898), S. 561-A---Accused booked for violation of Northern Areas Wildlife (Protection, Preservation, Conservation and Management) Act, 1975---Proper forum---Jurisdiction---Scope---If a proper forum was provided to accused, other courts should be slow to interfere in the jurisdiction of said forum---Where no forum was provided and accused was convicted, he could resort to Chief Court for relief by invoking the provision of S. 561-A, Cr.P.C., as a citizen could not be allowed to be kept in jail if no forum of appeal was provided.

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

----Ss. 96, 98 & 165---Conducting raid on dwelling house---Warrant of search was not issued---Validity---Assistant Commissioner deputed a Magistrate to conduct a raid on accused's house without issuing warrant of search or without associating of lady constable---Act of Assistant Commissioner and raiding party was in utter violation of law and a sheer abuse of authority---Raiding party had transgressed their authority and violated the sanctity of a house, where raiding party had detained the inhabitants of the house for hours---Chief Court observed that to deprive a person of his liberty, was a detestable act, which could not and should not be blessed in any manner.

Surah An-Noor verses 27 and 28 and PLD 1998 SC 388 rel.

(d) Jurisdiction---

----If a mandatory condition for the exercise of jurisdiction before Court, tribunal or authority was not fulfilled, entire proceedings which had followed become illegal and suffered from want of jurisdiction---Any order passed in continuation of such proceedings in appeal or revision equally suffered from illegality and were without jurisdiction.

PLD 1972 SC 271 rel.

(e) Northern Areas Wildlife (Protection, Preservation, Conservation and Management) Act (V of 1975)---

----Preamble--- Criminal Procedure Code (V of 1898), Ss. 103 & 561-A---Search of house of accused without warrant in absence of accused and without witnesses---Accused had been charged for illegal possession of meat of hunted animal, which was violation of Northern Areas Wildlife (Protection, Preservation, Conservation and Management) Act, 1975---Accused was convicted and sentenced for a period of six months with fine a sum of Rs.1,00,000 by the Judicial Magistrate---Sessions Court on revision, maintained the order passed by the Judicial Magistrate---Validity---FIR/complaint was not in the field when the house of accused was raided---No search warrant was issued by the competent authority---Police had made search without search warrant and without associating witnesses from locality in spite of their availability which was in violation of mandatory provision of S. 103, Cr.P.C.---Three henchmen were associated and cited as marginal witnesses without mentioning their parentage and addresses---Police having entered in the house of accused in his absence without search warrants, which was transgression of authority as well as violation of law and norms of human values---Recovery of the meat of hunted animal by the Investigating Officer from the premises of accused was a nullity of law being violation of the provisions of S. 103, Cr.P.C.---Proceedings pending before the Magistrate were quashed in circumstances---Appeal was dismissed and conviction ordered by the Judicial Magistrate was also quashed accordingly by exercising powers under S. 561-A, Cr.P.C.

Basma Tabassum v. Deputy Commissioner Sheikhupura and others 1999 MLD 778; Ch. Pervaiz Ellahi v. SHO Police Station Qila Gujar Singh 1995 PCr.LJ 345 and Arshad Mehmood v. The State PLD 2008 SC 376 ref.

Sharif Ahmad, Advocate assisted by Munir Alam, Legal Advisor for Wildlife for Appellant.

Mubarak Ali for Respondent.

2017 P Cr. L J 1075

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

STATE and another---Appellants

Versus

ABDUR RAHIM and another---Respondents

Cr. Appeal No. 41 of 2015, decided on 22nd August, 2016.

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

----Ss. 302, 109 & 34---Qatl-i-amd, common intention abetment---Appreciation of evidence---Appeal against acquittal---FIR was disowned by the complainant---Effect---complainant, who was real brother of deceased and eye-witness had disowned the FIR during trial---Nine prosecution witnesses were examined but they did not connect the accused with the crime---Prosecution's remaining witnesses were formal and their evidence was of formal nature like recovery of last worn clothes, recovery of blood-stained earth etc.---No material flaw was found in the judgment passed by the Trial Court---Appeal against acquittal was dismissed accordingly.

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

----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Parameters---Different parameters were available to deal with an appeal against acquittal and an appeal against conviction---Accused was presumed innocent till adjudged guilty and this presumption of innocence was multiplied when he was acquitted by the court of competent jurisdiction.

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

----S. 417(2-A)--- Appeal filed by State and appeal filed by complainant---Limitation---State if, aggrieved from an order of acquittal, would file an appeal under S. 417, Cr.P.C.---Complainant if aggrieved from the order of acquittal, would file appeal under S. 417(2-A), Cr.P.C.---Limitation for filing appeal by State or complainant was also at variance.

Malik Shehbaz, Dy. A.-G. for Appellants.

Burhan Wali for Respondents with Respondent in person.

2017 P Cr. L J 1088

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

RIZWAN ALI---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 153 of 2016, decided on 11th November, 2016.

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

----S. 169---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Application for summoning of accused placed in column-No. 2 of challan to face trial---Contention of accused was that he was released under S. 169, Cr.P.C. on account of deficient evidence---Trial Court summoned the accused on application by prosecution---Validity---No application was required in the matter as Trial Court itself was competent to call any accused placed in column No. 2 of the challan, court takes the cognizance of the offence and not the offender.

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

----S. 169---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Summoning of accused placed in column No. 2 of challan to face trial---Accused contended that there was not an iota of evidence against him and he was released under S. 169, Cr.P.C. on account of deficient evidence---Accused's name was placed in column No. 2 of the challan---Trial Court summoned accused to face trial after accepting application moved by prosecution---Validity---If there was some incriminating evidence against accused placed in column No. 2 of the challan, Trial Court's powers to summon the said accused could not be curtailed.

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

----S. 173---Report of investigating agency---Scope---Provisions of S.173, Cr.P.C. were not available to complainant---Complainant, if dissatisfied with decision of investigating agency, could file a direct complaint.

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

----S. 561-A---Inherent powers of Chief Court---Inherent jurisdiction under S. 561-A, Cr.P.C. was not an alternate or additional jurisdiction---Said jurisdiction could not be invoked when alternate remedy was available in the Trial Court.

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

----S. 561-A---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Summoning of accused placed in column No. 2 of challan to face trial---Quashing of criminal proceedings---Accused contended that he was released under S. 169, Cr.P.C. on account of deficient evidence---Accused was named in column No. 2 of the challan---Trial Court summoned accused to face trial after accepting application moved by prosecution---Validity---If there was some incriminating evidence against accused placed in column No. 2 of the challan, Trial Court's powers could not be curtailed---In the present case, contents of FIR and statement of prosecution witness were the only pieces of evidence available against the accused---Said evidence were vague and sketchy and without any other incriminating evidence---Circumstances suggested that there were remote chances of conviction of accused---Proceedings pending against the accused before the Trial Court were ordered to be quashed.

2002 YLR 3595 and PLD 2001 SC 536 ref.

Haji Pir Muhammad for Petitioner.

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

2017 P Cr. L J 1130

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

MUHAMMAD IBRAHIM---Appellant

Versus

The STATE---Respondent

Cr. Appeal No. 25 of 2012, decided on 29th November, 2016.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, enhancement of---Last seen evidence---Scope---Accused was charged for the murder of his wife and two children---Prosecution witnesses including complainant had stated that they had seen the deceased persons in the company of accused---Record showed that wife and children of accused were living with him---Accused was interested for second marriage and inflicted torture and physical violence upon his wife---Accused considered his wife a hurdle in accomplishment of his desire of second marriage---Accused was maintaining illicit liaison with his real niece---Story as alleged by the said prosecution witnesses about the illicit liaison of accused with his niece was neither challenged nor shattered by the accused---Statements of said witnesses were natural and reliable, which were not challenged by the accused---Bald assertion of defence that victim lady committed suicide could not come for rescue of the accused---Accused was obliged to discharge the burden and the events regarding missing of his wife and children and to lay foundation regarding commission of suicide by his wife---Neither it was suggested to any witness nor the accused raised plea in his statement recorded under S. 342, Cr.P.C. or to examine himself under S. 340(2), Cr.P.C about the suicide allegedly committed by deceased lady---Last seen evidence was sufficient incriminating piece of evidence, which connected the accused with the commission of offence---Chief Court enhanced the sentence of accused from imprisonment for life to death in circumstances.

1998 SCMR 2669 rel.

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

----S. 173---Final police report---Evidentiary value---Submission of final police report under S. 173, Cr.P.C. was to be construed as prosecution case for any purpose.

PLD 1988 SC(AJ&K) 148 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 439---Qatl-i-amd--- Appreciation of evidence--- Sentence, enhancement of---Circumstantial evidence---Scope---Accused was charged for the murder of his wife and two children---Prosecution witnesses including complainant stated that accused had illicit liaison with his niece and intended to contract second marriage---Accused considered his wife as hurdle in accomplishment of his said desire---Accused murdered his wife and children in that context---Witnesses including neighbours of the accused and victim lady were natural witnesses---Said witnesses supported each other regarding illicit relation of accused with his niece---Two air tickets one for accused and other for his niece were recovered on the pointation of accused---Story of illicit liaison of accused and his niece was neither challenged nor shattered and no explanation was offered by the accused as to why he purchased the said air tickets for him and his niece---Prosecution witnesses deposed that on the day of occurrence, deceased lady came to her house and asked for some medicine to prevent vomiting and told her that her husband was taking her and her children for pleasure trip--- Statements of said witnesses were natural, trustworthy and confidence inspiring and despite lengthy cross-examination nothing could be extracted by defence in favour of accused---All the prosecution witnesses had categorically named the accused during investigation but also during course of their deposition in the Trial Court---Defence could not bring anything on record, which could justify that these witnesses were inimical or biased and falsely roped the accused in the crime---Appeal was disposed of by enhancing the sentence of accused from imprisonment for life to death in circumstances.

(d) Criminal trial---

----Evidence---Cumulative effect---Scope---To evaluate the available evidence as a whole notwithstanding the facts whether prosecution would get the benefit or the accused and court must consider the cumulative effect of total evidence while assessing its evidentiary value and pieces of evidence would not be read in isolation.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, enhancement of---Non-recovery of vehicle---Effect---Defence objected that the vehicle allegedly used for carrying the victims was a piece of incriminatory evidence, was not taken into possession by the Investigating Officer, which had demolished the prosecution case---Said objection did not advance the case of defence as it was a technical lapse on the part of Investigating Officer and technicalities should be overlooked without causing miscarriage of justice and in such like cases, the approach of the court should be dynamic and not static---If after evaluation of evidence, court come to the conclusion that the accused had committed the offence, it should record the conviction though there might have been some technical lapses on the part of investigation agency---Irregularities and even the illegalities did not demolish the prosecution case---Appeal was disposed of by enhancing the sentence of accused from imprisonment for life to death in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, enhancement of---Prosecution had successfully established the charge of murder of three deceased against accused to the hilt---If prosecution proved case beyond reasonable doubt and established charge of murder, the normal penalty of death should be awarded---Appeal was disposed of by enhancing the sentence of accused from imprisonment for life to death in circumstances.

PLD 1976 SC 452 rel.

(g) Criminal trial---

----Investigation---Lapses on the part of Investigating Officer---Effect---Complainant could not be penalized on account of lapses on the part of Investigating Officer.

2014 PCr.LJ 885 rel.

Muhammad Umar Farooq for Appellant.

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

2017 P Cr. L J 1189

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

WAJID ULLAH BAIG---Petitioner

Versus

The STATE---Respondent

Cr. Misc. Nos. 191, 192, 193, 194 and 195 of 2016, decided on 14th December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 420 & 489-F---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque---Bail, refusal of---Habitual offender---Prosecution case was that the accused petitioner in order to fulfil his financial obligation issued cheques of various amount and when these cheques were presented before the bank for encashment, they were dishonored---Accused petitioner had defrauded the complainants of huge amount by issuing bogus cheques while there was insufficient amount in his account---Chief Court observed that no doubt that normal business transaction should not be made base for criminal liability but the present case did not fall within the category of civil transaction---Act of accused petitioner involved mens rea regarding the alleged dishonest and fraudulent representation of facts---Accused petitioner had injured not only valuable rights of the families and had added severe mental and psychological torture into their miseries but also ruined their future---If such like criminals were allowed bail simply on the ground that offence did not fall within the prohibitory clause of S. 497, Cr.P.C., it would amount to granting premium to the offender---Admittedly, different alike FIRs were registered against the accused petitioner, which showed that accused petitioner was a habitual offender and was issuing bogus cheques to different people without realizing its consequences---Circumstances established that accused petitioner did not deserve any leniency---Bail was declined accordingly.

PLD 2002 SC 546; 2009 SCMR 299; 2010 MLD 1063; PLD 2008 Lah. 1919; 2007 YLR 1120; 2007 YLR 1280; 2001 PCr.LJ 1802; 2013 MLD 1238; 2009 PCr.LJ 497; 2010 MLD 1711 and 2004 SCMR 1467 ref.

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

----S. 497---Bail---Discretionary relief---Grant or refusal of bail though was discretion of the court but such discretion be exercised in a judicious manner taking into account all the attending circumstances of particular case.

Akram Baig, Athar Hussain and Mehmood Alam for Petitioners (in all cases).

Malik Sherbaz, Dy. A.-G. for the State (in all cases).

2017 P Cr. L J 1317

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUJAHIDDIN---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No. 206 of 2016, decided on 31st December, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic drugs---Bail, grant of---Further inquiry---Complainant (police officials) raided at the house of accused and recovered Charas (narcotic) and arms/ammunition---Entry into the house without permission of its occupants and without obtaining a search warrant under S. 98, Cr.P.C. was not permitted---Station House Officer of Police Station had violated the sanctity of "Chaddar and Chardiwari" which was not permitted---Chief Court observed that Police officer who entered house of any stranger, could be termed as trespasser and necessary criminal proceedings could be initiated against him by the complainant---Narcotics recovered from accused was sealed at the spot but FIR was completely silent regarding separation of sample of allegedly recovered narcotic for further dispatch to Chemical Examiner for expert opinion---Alleged drug was not sent to Chemical Examiner, thus, it could not be presumed legally that the stuff so recovered was intoxicant---Registration of FIR by local Police under Control of Narcotic Substances Act, 1997 needed a thorough and detailed judgment in the light of law laid down in PLD 1997 SC 408---Whenever and wherever two views were possible, the view, which favoured the accused would be adopted---Bail was granted accordingly.

Muhammad Kamaran and Aurangzeb Khan for Petitioner.

Additional A.-G. for the State.

2017 P Cr. L J 1339

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NAVEED HUSSAIN through Mother---Petitioner

Versus

The STATE and 2 others---Respondents

Cr. Misc. No. 16 of 2017 in Cr. Misc. No. 14 of 2017, decided on 9th January, 2017.

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

----Ss. 561-A & 381---Execution of order of death sentence---Inherent powers of Chief Court to suspend black warrant after rejection of mercy petition---Scope---Accused was awarded death sentence by the Trial court which was confirmed by both the appellate courts---Convict filed mercy petition under Art. 45 of the Constitution before the President of Pakistan which was not acceded to and after rejection of mercy petition and direction contained in the judgment of Supreme Court, Trial Court issued black warrants for execution of the accused in terms of S. 381, Cr.P.C.---Counsel of convict filed petition under S. 561-A, Cr.P.C. for suspension of execution---Validity---Held, arguments of counsel for petitioner could not hold field being out of scope of the powers conferred upon the Chief Court under S. 561-A, Cr.P.C. as the Chief Court could not sit as a revisional Court over the orders of Supreme Court, endorsed by President of Pakistan, in mercy petition---Application under S. 561-A was dismissed in limine.

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

----S. 561-A--- Inherent powers of Chief Court---Scope---Powers of Chief Court under S. 561-A, Cr.P.C. were neither alternative nor additional in its character---Said powers would be exercised where no alternate remedy was available to an aggrieved party and Court considered that dictates of justice demand that Court should come for rescue of an affected party and not otherwise.

Joher Ali and Amjad Hussain for Petitioner.

2017 P Cr. L J 1477

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

STATE through Deputy Advocate-General, Gilgit-Baltistan---Petitioner

Versus

GHAFOOR and 6 others---Respondents

Cr. Misc. No. 200 of 2016, decided on 1st March, 2017.

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

----S. 154---Registration of FIR---Officer in-charge of the police station was required to record FIR in the relevant book kept at the police station under S. 154, Cr.P.C., and if from the information given to him, prima facie, a cognizable offence was made out---No option was available in law, with the in-charge of a police station to refuse registration of FIR.

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

----Ss. 22-A, 22-B, 154, 155 & 561-A---Petition for quashing of proceedings---Ex-officio Justice of Peace, jurisdiction of---Station House Officer of Police Station was directed by Justice of Peace to register case under the relevant provision of law and to carry out the investigation accordingly---Counsel for the State contended that order of Justice of Peace for registering the case was without jurisdiction as FIR of the incident had already been registered in some other police station, therefore, registration of second FIR on the same fact would be an illegal act---Petitioner had alleged that in the earlier FIR real facts of the case had been twisted and a different story of the occurrence had been painted by the police of other city---Validity---Prosecution case was that a police official committed murder of two persons---Police had refused to register the case against said police official---Record showed that a rapt was entered, which indicated that a cognizable offence was made out, genuineness of which was to be ascertained after investigation---Ex-officio Justice of Peace was bound to direct the SHO to record the version of complainant as per S. 154, Cr.P.C. without least hesitation if the complainant deposed the existence of cognizable offence--- Quashment petition was dismissed in circumstances.

Malik Sherbaz, Deputy Advocate-General for the State/Petitioner.

Shreen, DSP Legal District Diamer.

Nasim Ahmed Mian and Rashid Umer for Respondents.

2017 P Cr. L J 1669

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, Muhammad Alam and Wazir Shakeel Ahmad, JJ

NADEEM ABBAS and 2 others---Appellants

Versus

The STATE---Respondent

Cr. Appeals Nos. 26, 33 of 2011 and 1 of 2012, decided on 20th October, 2016.

Per Malik Haq Nawaz J, agreeing with Wazir Shakeel Ahmad, J on difference of opinion between Wazir Shakeel Ahmed and Muhammad Alam, JJ [Majority view]

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

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Occurrence in the case was an unseen one devoid of the presence of any eye-witness---Prosecution version was that deceased while being unconscious was raped by accused, but the negative report of Pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belied the prosecution version---Medical team was bound to unearth the cause of death and to come up with accurate and credible findings in that regard, but the exhumation report revealed that the same had been done in a routine manner---None of the quoted methods had been applied to dig out the truth nor there existed a finding that the employment of said methods was either not possible or there were any sort of impediments in doing so---Evidence adduced by the prosecution was barren to such an extent that it was quite incapable of germinating the seed of conviction in any manner---Motive as alleged by the prosecution saw the light of the day only after accused persons made confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997---If for the sake of argument, the confessional statements of accused persons were considered to be correct despite their legal infirmity, even then same were not probative enough to yield positive results for the prosecution---"Memory Card", which laid the foundation of whole transaction, neither was recovered from accused nor any evidence was put forth by the prosecution regarding the fate of said memory card---Mortar which could have been used to erect the superstructure of prosecution's case turned into rubbles because of the happy go lucky behaviour shown with respect to the collection of corroboratory evidence by both the Investigating Officers---Venue of occurrence as depicted in the site plan, negated prosecution version---Dining hall where the deceased was allegedly hanged was adjacent to the sleeping room where all the under-training nurses, who were fourteen in number used to sleep---Testimony of prosecution witness was of vital importance since it unraveled a number of mysterious knots of the controversy---No last seen evidence was available which could even remotely suggest that the deceased was either rang up or taken out by co-accused---Chronological sequence of certain happenings which occurred during the course of investigation and the recoveries effected, also had a telling effect on the prosecution case---Recovery of pillow; was also of no avail to the prosecution case---If the same was taken to be the weapon of offence, the exhumation report by virtue of which the Medical Board found ligature marks, dashed down to the ground, because ligature could be anything used to compress the throat to block the air supply---Evidence of extra-judicial confession also cut a sorry figure with respect to the case of prosecution---Prosecution which was supposed to prove its case up to the hilt beyond any shadow of doubt, had failed to do so---Thick mist of doubt was looming over the prosecution case---No reliance could be placed on the evidence produced by the prosecution---All accused persons were acquitted of the charge extending them benefit of doubt and they were ordered to be released forthwith, in circumstances.

2006 SCMR 231 ref.

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

----S. 302---Medical report and medical evidence---Scope---What exactly could be expected from medical report, was generally the time, nature and cause of death, injuries on some body's person, their age, creed and intensity, the medical condition of various body organs at the time of examination; but it never would point towards the assailant---Medical evidence would only gain importance where along with other corroborative incriminating evidence, it would weave the rope of the noose supposed to fit the neck of accused.

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

----S. 167---Remand proceedings---Magistrate regulating the remand proceedings, had to be very cautious in granting or refusing remand---Order of Magistrate, in either way was to be supported with logical and legal reasoning---Any mistake committed by Magistrate, could have serious ramification and same could change the countenance of either the prosecution or the defence case that too in a perverse manner---Duty would become almost sacred when the question was that of remand of accused or as committed to judicial lock up.

1984 PCr.LJ 2588 and PLD 2001 SC 607 ref.

(d) Criminal trial---

----Benefit of doubt---Benefit of every doubt would tend to tilt the balance of justice in favour of accused, but where the same was occasioned owing to the inefficiency of Investigating Officer, or where the same seeped in a verdict because of below the mark proceedings conducted by the Police personnel, it would become all the more pinching and heart rendering for the Court, specially where the record screamed out that the doubt pulling faces to the aggrieved victim had been devised, designed and mechanized by a satanic intent of benefiting accused at the expense of one who pinned his hopes in the judicial system of the country---Such devastative phenomenon had two prong impact on the society; on the one hand, it would give a clean chit to the guilty, on the other, it would make the bereaved complainant septic and hostile towards the system of dispensing justice.

Per Muhammad Alam, J; Malik Haq Nawaz, J disagreeing [Minority view]

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

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Occurrence being unseen, there was no eye-witness---Only evidence against accused persons was circumstantial evidence and second medical report, which contradicted the first medical report on very crucial aspects of the occurrence---Evidence on record regarding messages and calls between accused and the deceased, had shown that accused had connection with the deceased---Trial Court had wrongly relied on confessional statement of accused persons as same had been recorded by the Police Officer, though judicial Magistrates were conveniently available---Only piece of evidence, which could not be ignored, was the second medical report---Doctors conducted the said second report on the dead body of deceased after exhuming the same from the tomb where deceased was buried---Prosecution had established the facts that the dead body which was subjected to the second post-mortem was of the deceased---Prosecution evidence comprised the second medical report and post-mortem report---Comparative study of both the reports, had shown that the first report was very short and summary, while the second medical report contained all necessary details that correctly related to the opinion of the Board of Doctors---First report was prepared without internal examination of the dead body of deceased, while the second report showed through examination of different internal parts of the body of deceased---Opinion of the Board of Doctors had shown that deceased received injuries at different parts of her body before she was murdered---Opinion of the doctors of the Board, very clearly contradicted the first medical report regarding the causes of death of the deceased---Court relied on the second medical report and held that the Trial Court had correctly relied on the same---Second medical report was correct and cause of death of the deceased was her murder by accused persons and not because of any suicide etc.---Sentence/conviction passed by the Trial Court, were upheld and appeals were dismissed---Murder Reference also answered affirmatively. [Minority view]

Per Wazir Shakeel Ahmed, J agreeing with Malik Haq Nawaz, J [Majority view]

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

----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Trial Court had nowhere in the impugned judgment incorporated/entrusted the motive of the offence---Police had claimed recovery of a video of accused having sexual intercourse with the deceased, but same was neither found to be placed on record nor witness was produced in support of recovery memo, rather he was abandoned---Prosecution had also failed to prove sexual assault by accused with the dead body of the deceased---Prosecution had failed to include the names of the persons to whom accused handed over the mobile phone of the deceased lady, nor the contents of the record of messages were verified/confronted before the Trial Court---Statement of the sole witness trainee, who was sleeping in hostel at night of the occurrence with the other inmates, created serious doubts on the story of the prosecution---Prosecution had failed to interlink the chain of corroboration/circumstantial evidence in the case and the chain of circumstantial evidence from taking of the possession of mobile phone to their numbers and the ownership, usage and the calls, messages received through other mobile phone to that of the alleged murder of deceased lady, was not established---Prosecution had failed to connect to the extent of co-accused in commission of alleged offence---Benefit of doubts, was extended to accused---Impugned judgment of the Trial Court was set aside, accused were acquitted and ordered to be released forthwith, in circumstances.

2008 SCMR 1103 and 2002 PCr.LJ 149 rel.

Haji Daulat Karim for Appellant (in Cr. Appeal No. 26 of 2011).

Jahanzeb Khan for the Complainant (in all cases).

Malik Sherbaz, Dy. A.-G. for the State (in all cases).

Raja Shakeel Ahmad for Appellant (in Cr. Appeal No.33 of 2011).

Amjad Hussain for Appellant (in Cr. Appeal No. 1 of 2012).

2017 P Cr. L J 21

[Islamabad]

Before Athar Minallah, J

AMEER HAMZA---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 465-B of 2016, heard on 18th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 395 & 412---Dacoity and receiving stolen articles---Bail, grant of---Statutory delay in conclusion of trial---Desperate and dangerous criminal---Habitual offender---Accused was arrested for committing dacoity and recovery of official motorcycle---Plea raised by accused was that fourth proviso to S. 497(1), Cr.P.C. was not attracted unless accused has a previous conviction and there was delay in conclusion of trial---Validity---Exception vide fourth proviso to S. 497(1), Cr.P.C. was attracted---Nature of offence, recovery of official motorcycle, material collected by prosecution and alleged involvement of accused in ten other registered criminal cases was rightly made the basis by two Courts below for forming opinion that accused fell within the ambit of expression "desperate and dangerous criminal" and was not entitled to bail---Bail was dismissed in circumstances.

Shabeer v. The State 2012 SCMR 354; Mohammad Afzal Butt alias Aphi v. The State 2015 SCMR 1696 and Jamil Raza alias Jeelu v. The State and others 2016 SCMR 1360 ref.

Moundar and others v. The State PLD 1990 SC 934; Muhammad Hanif v. The State PLD 1986 Kar. 437; Sher Ali alias Sheri v. The State 1998 SCMR 190; Umar Draz and another v. The State 1997 SCMR 885; Jalal v. Allahyar and another 1993 SCMR 525 and Jaggat Ram v. The State 1997 SCMR 361 rel.

Tanveer Khalid Awan for Petitioner.

Ms. Hadiya Aziz, State Counsel and Akram, S.I along with Police Record for Respondents.

2017 P Cr. L J 133

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD NAWAZ---Petitioner

Versus

SHO, POLICE STATION, SABZI MANDI, ISLAMABAD and others---Respondents

W.P. No. 2684 of 2016, decided on 28th July, 2016.

Penal Code (XLV of 1860)---

----S. 406---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 10---Criminal Procedure Code (V of 1898), S. 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR--- Criminal breach of trust---"Entrustment of property"---Scope---Agreement to sell, breach of---Receiving of earnest money---Petitioner was accused in FIR registered under S. 406, P.P.C. alleging that he entered into agreement to sell a house and received earnest money but did not perform his part of contract---Validity---Payment of earnest money did not fall within the preview of 'entrustment' of property in terms of S. 406, P.P.C.---If the seller, after receiving sale consideration or part of sale consideration refused to transfer property or failed to abide by terms of agreement, it was not a 'misappropriation'---Such failure or breach of terms could not be equated with "dishonest use"---Disposal of property, violation of any legal contract and any breach of such agreement had remedy under Specific Relief Act, 1877---One could seek specific performance of contract if the same was enforceable by law and Court of law had to see as to which party was responsible for refusal or failure of performance of terms of contract---As a result of evaluation of civil court either defendant was directed to perform the contract or pay damages under such law---Such scheme of law under Specific Relief Act, 1877, provided a mechanism which covered all those contracts between parties which had been executed in terms of Contract Act, 1872, and their remedies were only provided in Specific Relief Act, 1877---Ingredients of criminal breach of trust had no space under Specific Relief Act, 1877, as the concept of mens rea could only be assessed by criminal Court whereas agreement between parties did not fulfil requirement of criminal breach of trust---Matter in dispute, in the present case, was purely of civil nature and terms of agreement only provided a remedy of civil nature---No limit could be put a clog on exercise of inherent powers of such Court to make such order as could be necessary to give effect in order to prevent abuse of process of any Court or otherwise to secure ends of justice---High Court quashed criminal proceedings initiated against petitioner---Constitutional petition was allowed in circumstances.

2014 YLR 2241; 2014 PCr.LJ 487; 2014 PCr.LJ 1305; 2011 PCr.LJ 1241; 2013 YLR 2513; 2006 PCr.LJ 1900; 2007 YLR 2766; 2015 SCMR 1575; 2006 SCMR 276 and 2006 SCMR 1957 ref.

Raja Ikram Amin Minhas for Petitioner.

Muhammad Nawaz Bhatti for Respondent No.2.

2017 P Cr. L J 225

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

WAHEED AKHTAR---Petitioner

Versus

SESSIONS JUDGE (EAST) ISLAMABAD and others---Respondents

Writ Petition No. 3480 of 2016, decided on 29th September, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Cross version---Second FIR---Scope---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace directing police to register second FIR on the complaint filed by respondent---Validity---Only recording of version could not create such right of complainant as guaranteed by procedural law---To have an independent case for same offence was necessary---In the present case, two different persons sought lodging of separate FIRs---Each case had to be decided on its own merits---One could not step into the shoes of another in a criminal case as it was warranted by law---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Constitutional petition dismissed in circumstances.

2014 MLD 1451 and 2014 PCr.LJ 1146 ref.

2017 P Cr. L J 340

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

KAMRAN SAEED---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

W.P. No. 1632 of 2016, decided on 20th July, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi) & (b)---Corruption and corrupt practices---Pre-arrest bail, refusal of---Misuse of authority---Mala fide---Petitioner was General Manager in a State owned company and it was alleged that he extended illegal benefits to a carriage contractor resulting into loss to national exchequer---Validity---Such category of officers were not entitled for any concession of bail who had not performed their duties in accordance with minimum required standards to protect assets of State and Government of Pakistan, which was a sacred trust under their command and control as the same amounted to corruption and corrupt practices---Petitioner was prima facie connected with commission of offence and had failed to demonstrate that he performed his duties honestly, diligently in a careful manner rather he was instrumental in causing loss to national exchequer---No mala fide on the part of National Accountability Bureau authorities against petitioner apparent on record nor petitioner demonstrated through any material that he was not connected with the offence of corruption and corrupt practices---Pre-arrest bail was declined in circumstances.

Abdul Sattar and another v. The State 2016 PCr.LJ 396 and Imran Mohsin v. The State and others C.P.L.A. No.272 of 2016 ref.

Sardar Asmat Ullah Khan and Raja Aamir Abbas for Petitioner.

Adnan Tahir, Senior Prosecutor for NAB.

2017 P Cr. L J 376

[Islamabad]

Before Shaukat Aziz Siddiqui, J

SHAFIQUE AHMED---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No. 751 of 2016, decided on 9th December, 2016.

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

----S. 561-A---Passports Act (XX of 1974), S. 6---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Complaint was filed by petitioner to the effect that respondent lady worked as Medical Officer and during her service, she had obtained Passport by concealing her occupation and marital status---FIR was lodged under S. 6, Passports Act, 1974 and after investigation, report under S. 173, Cr.P.C. for cancellation of FIR was submitted before the Magistrate, which was allowed---Validity---Admittedly, order passed by the Magistrate was an executive order, which was not passed by a court after taking cognizance of matter and during pendency of judicial proceedings---Plain language of S. 561-A, Cr.P.C. suggested that it could be invoked by any aggrieved person in order to give effect to any order under the Criminal Procedure Code, 1898, or to prevent abuse of the process of any court, or otherwise to secure the ends of justice---In the present case, petition under S. 561-A, Cr.P.C. did not relate to any order passed by the Magistrate in his judicial capacity---No order under the Code, having been passed, effect of which had been sought to secure the ends of justices; petition under S. 561-A, Cr.P.C. was dismissed accordingly.

Bahadur and another v. The State: PLD 1985 SC 62 rel.

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

----S. 561-A--- Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Provisions of S. 561-A, Cr.P.C. had relevance only to judicial proceedings or order---Petition under S. 561-A, Cr.P.C. against the order passed by Judicial Magistrate whereby, concurrence had been accorded to cancellation report submitted under S. 173, Cr.P.C., being order passed on the executive side, was not maintainable---Petition was dismissed accordingly.

Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753 rel.

Mian Ahmed Khan for Petitioner.

2017 P Cr. L J 469

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SULTAN UBAID-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 118 of 2016, decided on 16th December, 2016.

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

----S. 94---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 337-A(i)---Qatl-i-amd, rioting armed with deadly weapon, common intention and Shajjah-i-khafifah---Application for summoning the Register of mortuary---Dismissal of---Defence had alleged that during cross-examination of prosecution witness, question with regard to bringing dead body to mortuary was raised---Defence therefore, moved an application to summon the Register of mortuary pertaining to the date of occurrence and bringing the dead body in the mortuary---Said application was dismissed by the Trial Court, observing that defence could raise said plea at the time of recording statement under S. 342, Cr.P.C.---Validity---In the present case, the police officer himself brought dead body at mortuary against which, such entries were available---Said police officer, when he was present at police station, lodged the FIR with different story of bringing dead body by the complainant at police station---Such ambiguity could only be removed by summoning record from mortuary---Said document, therefore, was vital for reaching at just and proper conclusion as it was a right of accused to summon the record, which could not be assassinated---Application to summon the Register from mortuary was allowed in circumstances.

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

----Ss. 302, 148, 149 & 337-A(i)---Criminal Procedure Code (V of 1898), S. 94---Qatl-i-amd, rioting armed with deadly weapon, common intention and Shajjah-i-khafifah---Appreciation of evidence---Application for summoning the register of mortuary---Dismissal of---Defence had alleged that during cross-examination of prosecution witness, question with regard to bringing dead body to the mortuary was raised---Defence therefore, moved an application to summon the register of mortuary pertaining to the date of occurrence and bringing the dead body in mortuary---Said application was dismissed by the Trial Court, observing that defence could raise said plea at the time of recording statement under S. 342, Cr.P.C.---Held, there were three stages where such relief was permissible to the defence; (i) at any stage of trial before recording statement under S. 342, Cr.P.C.; (ii) at the time of recording statement under S. 342, Cr.P.C., accused may suggest to name all defence witnesses and any other material required to be summoned from any concerned quarter and (iii) at the time of submitting written statement permissible under S. 265(f), Cr.P.C. whereby the accused could offer such defense to summon record for which a separate order had to be passed by the court---In the present case, stage where application was moved for summoning the record was proper and appropriate---Application to summon the Register from mortuary was allowed accordingly.

2017 P Cr. L J 622

[Islamabad]

Before Shaukat Aziz Siddiqui, J

JEHAN ALI alias JEE KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 159 of 2015, decided on 9th December, 2016.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appreciation of evidence---Identification parade---Necessity---Accused persons who committed the offence were not known to complainant or any of his companions---Complainant had not mentioned features of the unknown accused persons except one, therefore, holding of identification test was essential, which was conducted but not as per requirements of law---Report of identification parade did not disclose the relevant FIR in which report was prepared; particulars of dummies were not provided; numerous cuttings were made in the report, without initial of the author; no verification of the identity of witnesses was on record; identification parade was held in two cases on the same day, in which accused was to be identified; High Court Rules and Orders relating to identification parade were not complied; and author had showed ignorance about the contents of the report---Circumstances established that such report of Identification parade was not a piece of evidence required consideration to impose punishment upon the accused---Accused was acquitted by setting aside conviction and sentences recorded by Trial Court.

PLD 2011 SC 350; 2009 PCr.LJ 573; 2005 YLR 301; 1991 SCMR 643 and 2013 PCr.LJ 1829 rel.

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

----Art. 22---Identification parade---Scope---Identification parade without ascribing any role or an act performed by accused, was of no significance.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Ghulam Shabbir Ahmad and another v. The State 2011 SCMR 683; Imran Ashraf v. The State 2001 SCMR 424 and Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 rel.

(c) Criminal trial---

----Appreciation of evidence--- One tainted evidence could not corroborate another tainted piece of evidence.

(d) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating doubt in prosecution case was sufficient to extent its benefit to accused as a matter of right.

2009 SCMR 230; 2008 SCMR 1221; 2011 PCr.LJ 1643; 2010 PCr.LJ 477 and 2008 PCr.LJ 613 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Best and independent evidence, not produced---Effect---Prosecution case was that at the time of occurrence, complainant was accompanied by the deceased and three other persons---Prosecution did not produce the said three persons as witnesses---No explanation was forthcoming to the effect that as to why prosecution did not produce any of said three eye-witnesses---Police Officer, who drafted the complaint, conducted investigation and collected evidence in the present case was not produced by the prosecution---Best and independent evidence was not produced by the prosecution in circumstances---Such lacunae in prosecution case were fatal---Presumption would be resolved against prosecution as there was no independent corroboration of the statement of complainant---Circumstances created doubt about the veracity of prosecution case, benefit of which would render in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2014 PCr.LJ 1559; PLD 2014 Pesh. 29; 2012 YLR 633; 2007 YLR 954; 1972 SCMR 286; PLD 1999 Lah. 56; PLD 1999 Lah. 56 and 2004 PCr.LJ 1030 rel.

Sardar Muhammad Aftab for Appellant.

Muhammad Akram Gondal, State counsel and Muhammad Khan, S.I., P.S. Tarnol for the State.

Ms. Humma Jamil Babar for Respondent No.2.

2017 P Cr. L J 674

[Islamabad]

Before Athar Minallah and Mohsin Akhtar Kayani, JJ

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and others---Respondents

W.P. No. 4657 of 2016, decided on 5th January, 2017.

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

----S. 497--- Bail--- Appreciation of evidence--- Scope--- Deeper appreciation of evidence at bail stage was not permissible.

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

----S. 9(a)(ix)(xii)---Criminal Procedure Code (V of 1898), S. 497---Illegal pecuniary advantage---Bail, grant of---Further inquiry---Accused was a proprietor of a corporation engaged in the import and distribution of drugs and was arrested by National Accountability Bureau on the grounds that he had derived wrongful financial gains on account of the consent decree, which was passed on a report submitted by the member of Price Fixation Committee allegedly prepared with the collusion and connivance of accused---Prosecution connected the accused with the commission of offence on the basis of said report which had not been approved by the competent authority---No speck of document was found in relation to the allegation that either the report had been concocted by the accused or that he had any role in preparation thereof---Record showed that Authority had challenged the consent decree, wherein said report was produced, by filing applications under S. 12(2), Civil Procedure Code on the grounds of alleged fraud and misrepresentation but same were dismissed by observing that no fraud or misrepresentation had been committed by the accused---Material available on record showed that either proper investigations had been exercised in haste for some extraneous reason and thus giving rise to allegation relating to pressuring the accused to enter into a plea bargain---Element of mens rea did not exist in the present case---No allegation was levelled against the accused of giving commission or illegal gratification nor that he in any manner was in a position or authority to influence the members of the Price Fixation Committee---Circumstances suggested that role and involvement of the accused in relation to the offence under S. 9(a)(ix)(xii) of the Ordinance needed further inquiry---Accused was more than 69 years old---No incriminating material was available on record to connect the accused with the commission of offence---Accused had no criminal record and nothing had been placed on record to indicate that there existed an apprehension that accused would abscond---Case against accused depended upon documentary evidence, which was admittedly in possession of prosecution---No possibility for the accused to tamper with the record---Accused was admitted to bail in circumstances.

Muhammad Asif v. State 2016 SCMR 1540; Rahim ud Din v. State 1994 MLD 1378; Mukhtar Ahmed v. NAB 2006 YLR 836; Muhammad Zafar v. State 2012 PCr.LJ 1549; Abdul Majeed v. NAB 2016 PCr.LJ 1874; Sarfraz Ahmed v. Chairman NAB 2016 PCr.LJ 79; Abdul Jabbar v. State 2015 YLR 108; Amin Farooqui v. NAB 2014 PCr.LJ 186; Muhammad Zafar v. Shahzad Ahmed 2011 MLD 602; Haji Mir Aftab v. State 1979 SCMR 320; Zakhim Khan v. State 1998 SCMR 1065; Manzoor Ahmad Watoo v. State 2000 SCMR 107; Saeed Mehdi v. State 2002 SCMR 282; Maj (R) Mushtaq Ahmed v. State 2002 YLR 706; Sanaullah Babar v. State PLD 2003 Pesh. 175; Muhammad Ali Athar v. Director General NAB 2013 PCr.LJ 58; Pir Muhammad Azam v. NAB 2016 PCr.LJ Note 84; Hudaibya Papers Mills Ltd. v. Federation of Pakistan PLD 2016 Lah. 667; Binyamin Khalil v. NAB 2012 YLR 2885; Chairman NAB v. Muhammad Arshad Khan 2008 SCMR 1012; Muhammad Arshad Khan v. Chairman NAB 2007 PCr.LJ 1957; Ramesh M. Udeshi v. State 2005 MLD 1745; Yaroo v. The State 2004 SCMR 864 and Seema Fareed and others v. The State and another 2008 SCMR 839 ref.

Rafiq Haji Usman v. Chairman NAB 2015 SCMR 1575; The State v. Anwar Saif Ullah Khan PLD 2016 SC 276; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Nawaz v. The State through Chairman, NAB Islamabad and another PLD 2008 SC 438 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

Makhdoom Ali Khan and Umair Majeed Malik for Petitioner.

Sardar Muzaffar A. Khan, ADPG, NAB and M. Saleem Ahmed Khan, DD/I.O. NAB for Respondents.

2017 P Cr. L J 854

[Islamabad]

Before Mohsin Akhtar Kayani, J

Syed HAMID SAEED KAZMI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 119, 117 and 122 of 2016, decided on 20th March, 2017.

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

----Arts. 72, 73, 75 & 76---Document---Admissibility in evidence---Principle---Any document which is not original or primary, cannot be tendered in evidence---Contents of a document without author or witness cannot be proved as admissible---Inadmissible documents cannot be taken into consideration for any purposes if those documents do not qualify the test of primary as well as secondary evidence under Qanun-e-Shahadat, 1984.

Nazeer Ahmad Barach v. The State and another 2005 PCr.LJ 882; Alam Zaib v. The State 1999 PCr.LJ 1955; Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371 and The State v. Muhammad Kaleem Bhatti 2015 YLR 2214 rel.

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

----Arts. 75, 76, 79 & 89 (5)---Criminal trial---Documentary evidence---Principles---Documents produced by prosecution during the course of trial in order to prove accusation cannot be admitted in evidence if original documents are not produced in evidence---No reliance for the purposes of conviction can be placed on photostat copies of documents, if the same are not admissible as not validly tendered in evidence---Documents whose contents have not been proved by way of its author, executors and witnesses of contents, as such the same are not admissible---Foreign documents without legal translation and attestation from High Commission, Embassy and Ministry of Foreign Affairs are not admissible.

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

----S. 342---Incriminating evidence---Documents not confronted to accused during statement under S. 342, Cr.P.C.---Effect---Such documents cannot be taken into consideration in trial while convicting accused persons.

Qaddan and others v. The State 2017 SCMR 148 rel.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating, forgery, illegal gratification and misuse of authority---Appreciation of evidence---Hajj Policy--- Mens rea---Kick backs, receiving of---Proof---Benefit of doubt---Five members of Parliament were deputed by Government to probe into allegations of corruption and misconduct while hiring 87 buildings in Saudia Arabia for Hujjaj Karam (pilgrims) during Hajj season 2010---On the report prepared by the Parliamentarians a criminal case was registered against one minister, two government officials and a private person---Trial Court convicted all accused persons and sentenced them to imprisonment of various terms along with fine---Report of Parliamentarians was prepared and placed on record but author of the document was not called nor the members of Parliament had substantiated their report through any witness or document---Value of such report, for the purposes of prosecution could not be assumed, except the document could only be looked into by Prime Minister of Pakistan, as referred in Hajj Policy, 2010---Prosecution failed to prove entire case against all accused persons by cogent and confidence inspiring evidence rather chain of evidence was missing which did not bring guilt of accused persons to home---Benefit of doubt in entire evidence went to accused persons and charges were not proved as entire documentary evidence was inadmissible, no recovery of crime proceeds was established by investigating officer, no connection was established through independent evidence that accused had received any kickbacks, commission or cash favour from any owner/Mustajar of 87 buildings hired in two (holy) cities---Prosecution also failed to establish that properties and assets of accused persons had been acquired from illegal means or from any amount received from Saudi Arabia in such regard---No evidence was available to prove that amount transferred from Saudia Arabia to Pakistan was part of illegal gratification, kickback or commission---Entire case was based upon violation of Hajj Policy 2010 and Policy Guidelines and the same was not an offence under any law and did not fall within the definitions of Ss. 409, 420, 467, 468, 471, 109/34, P.P.C. read with S. 5(2) of Prevention of Corruption Act, 1947, in any manner---High Court set aside conviction and sentence awarded to all the accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Abdul Rashid Nasir v. The State 2009 SCMR 517; Qazim Raza v. The State 1996 MLD 2624; Mian Muhammad Nawaz Sharif v. Special Court and others 1998 PCr.LJ 162; The State and others v. Muhammad Idrees Ghouri 2008 SCMR 1118 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 rel.

(e) Rules of Business, 1973---

----R. 5(9)(b)---Policy of government---Execution---Responsibility---Provisions of R. 5(9)(b) of Rules of Business, 1973, fix responsibility upon the Secretary being Head of Ministry for efficient administration and discipline as well as due execution of sanctioned policy.

(f) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3 & 4---Misconduct---Policy, violation of---Effect---No penalty has been provided under Rules of Business, 1973, for violation of any policy decision although Prime Minister or Head of the Ministry being responsible officers have to take action in accordance with law i.e. Government Servants (Efficiency and Discipline) Rules, 1973, against concerned public servant for non-compliance of directions or orders of Government---Such violation amounts to misconduct on the part of civil servant.

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

----S. 409---Criminal breach of trust by public servant---Ingredients---Entrustment, dishonest misappropriation or conversion to his own use by person in whom confidence reposed, dishonest use or disposal of property in violation of any direction of law and dishonest use or disposal of property in violation of any legal contract are key factors---Offence cannot be proved unless later portion of the offence stands proved by way of independent evidence especially when usage and conversion of entrusted property by accused is not established beyond any shadow of doubt.

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

----S. 5(2)---Misuse of authority---Proof---Preconditions---In order to prove charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus rea of crime have to be necessarily established; in case any of them if found missing, offence cannot be constituted whereby mens rea in context to misuse of authority means, to act in disregard of law with conscious knowledge that act was being done without authority of law which resulted into illegal gain or undue benefit.

The State and others v. Muhammad Idrees Chouri 2008 SCMR 1118 rel.

Sardar Latif Khan Khosa, Sardar Nasir Ahmad Saghir and Rai Mudassir Iqbal for Appellant (in Criminal Appeal No. 119 of 2016).

Qazi Misbah-ul-Hassan for Appellant (in Criminal Appeals Nos.117 and 122 of 2016).

Muhammad Azhar Ch., SPP for FIA and Ghazanfar Abbas, Inspector, P.S. SIU, FIA, Islamabad for the State (in Criminal Appeals Nos. 119, 117 and 122 of 2016).

2017 P Cr. L J 1026

[Islamabad]

Before Shaukat Aziz Siddiqui, J

LIAQAT ALI MIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Crl. Rev. No. 58 of 2016, decided on 10th February, 2017.

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

----Ss. 404, 408, 409, 1(2), 4(h) (m) (o) & 29---Muslim Family Laws Ordinance (VIII of 1961), S. 7---Complaint of polygamy---Sentence---Appeal before Sessions Court---Competency---Accused was awarded sentence of simple imprisonment of one month with fine of Rs. 5000/- for contracting second marriage without permission during subsistence of earlier marriage---Appeal filed by the accused was dismissed observing that right of appeal had not been provided under Muslim Family Laws Ordinance, 1961---Validity---Entire proceedings had been conducted by the Trial Court under the provisions of Criminal Procedure Code, 1898---Proceedings conducted by the Trial Court were judicial proceedings---Complaint under S. 6(5) of Muslim Family Laws Ordinance, 1961 was entertained as 'complaint' under Criminal Procedure Code, 1898 and accused was tried accordingly---Provisions of Criminal Procedure Code, 1898 would regulate the proceedings in the complaint under S. 6(5) of Muslim Family Laws Ordinance, 1961---Appeal under Ss. 408/409 of Criminal Procedure Code, 1898 could be brought by any convict awarded sentence under S. 6(5) of Muslim Family Laws Ordinance, 1961---Executive Magistrate empowered to conduct any trial under Criminal Procedure Code, 1898 was court subordinate to the Sessions Judge---Impugned order passed by the Appellate Court was set aside---Appeal filed by the accused should be deemed to be pending before the Appellate Court for decision on merits---Revision was allowed in circumstances.

Syed Masroor Shah and others v. The State PLD 2005 SC 173 ref.

2011 YLR 1595; State v. Naeem Ullah Khan 2001 SCMR 1461; Naseem Akhtar Durrani v. Mst. Abida Sultan 1992 MLD 93; 1989 PCr.LJ 749; 2004 PCr.LJ 278; 2011 YLR 1595; H.M. Saya and Co. v. Wazir Ali Industries PLD 1969 SC 65 and Muhammad Younus v. The State 2000 YLR 2841 rel.

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

----Ss. 435 & 439---Revision---Scope---Sessions Judge had power to call for the record in order to satisfy him about the conduct of proceedings.

(c) Appeal (Criminal)---

----Appeal was continuation of trial.

Owais ul Islam for Petitioner.

Ali Hussain Bhatti, Rana Ghulam Asghar Khan and Imtiaz Ahmed Gujjar for Respondent No.3.

Shah Khawar, Advocate Supreme Court, Sher Afzal Khan, AHC and Qaiser Imam Ch., AHC as Amici Curiae.

Arshad Mehmood Kiyani, DAG and Muhammad Akram Gondal State Counsel.

2017 P Cr. L J 1121

[Islamabad]

Before Shaukat Aziz Siddiqui, J

SAJJAD KHAN alias SHAHZAD KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 119 of 2015, heard on 9th December, 2016.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Allegation against accused was that he made firing, as a result whereof, two persons were seriously injured---Brother of complainant succumbed to the injuries---Injured/eye-witness had given detailed account of the incident---Statement of injured/eye-witness was of much significance and immense value---Said witness stated that accused had come to his shop and fired two shots at him, which landed on his left arm and left leg---Accused made two fire shots at the deceased---Although lengthy cross-examination conducted by defence but version of witness regarding firing two shots on deceased and two on injured remained unquestioned and unrebutted---No cross-examination was conducted on such portion of the statement/version, which tantamounted to admission---Such part of statement of injured witness was not only crucial but substantive to determine the guilt of accused---Injured witness furnished direct ocular account with specific role of aimed firing made by accused at the person of deceased and injured---Statement of injured witness found corroboration from medical evidence and attending circumstances---Postmortem report of deceased showed two fire arm injuries on his body, which was in conformity with the evidence of injured/eye-witness---Circumstances established that accused was responsible for committing murder of the deceased---Appeal against conviction was dismissed in circumstances.

PLD 2010 SC 642; PLD 2007 SC 249; 2007 PCr.LJ 1669; 1993 PCr.LJ 1632 and 2012 PCr.LJ 1840 rel.

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

----Arts. 113 & 132---Facts admitted need not to be proved---Scope---Admitted facts did not require any proof and if some portion of statement of a witness remained without cross-examination, same would be considered as admission.

(c) Maxim---

----Falsus in uno falsus in omnibus had no universal application---Law developed on the principle of "sifting chaff out of grain".

2013 PCr.LJ 603; 2012 YLR 510; 2010 SCMR 1090 and PLD 2002 SC 52 rel.

Raja Zaheer-ud-Din Babar and Raja Shahid Zafar for Appellant.

Muhammad Akram Gondal, Standing Counsel for the State.

Complainant in person.

2017 P Cr. L J 1266

[Islamabad]

Before Athar Minallah, J

MUHAMMAD AMJAD---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

W. P. No. 2806 of 2016, heard on 29th March, 2017.

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

----S. 2---Exit from Pakistan (Control) Rules, 2010, R.2---Constitution of Pakistan, Arts. 4, 9 & 15---Constitutional petition---Freedom of movement---Exit Control List---Phrase "subject to reasonable restrictions imposed by law in public interest" in Art. 15 of the Constitution---Applicability---Petitioners were aggrieved of their names on 'Exit Control List' despite of their being acquitted by Trial Court---Validity---Phrase "subject to reasonable restrictions imposed by law in public interest" expressly used by makers of the Constitution, had to be tested on the touchstone of the grounds described under R. 2 of Exit from Pakistan (Control) Rules, 2010, to restrict or deprive a person of Fundamental Rights of freedom of movement---If the action of abridging right of freedom of movement could not be so justified then it was tantamount to be unconstitutional, arbitrary and without lawful authority---Federal Government, by way of policy, had prescribed parameters for placing names on Exit Control List---Valid and lawful justification did not exist to deny Fundamental Rights guaranteed under Arts. 4, 9 & 15 of the Constitution---Memorandum in question was declared unconstitutional and refusal on the part of Federal Government to remove names of petitioners from 'Exit Control List', was arbitrary, illegal and without lawful authority and justification--- Constitutional petition was allowed in circumstances.

Federation of Pakistan through Secretary, M/o Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856; State of the Islamic Republic of Pakistan v. Zulfiqar Ahmed 2005 SCMR 1469; Wajid Shamas ul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 ref.

Raja Rizwan Abbasi for Petitioner.

Kh. Imtiaz Ahmed, Assistant Attorney General, Sher Afghan, Additional Secretary M/O Interior, Qaisar Masood, Additional Director Legal, FIA, Muhammad Azeem Akhtar, Assistant M/O Interior and Mian Abdul Rauf, Advocate-General for Respondent.

2017 P Cr. L J 1319

[Islamabad]

Before Athar Minallah, J

MURAD AMEER SHAH---Petitioner

Versus

SAMAR PERVAIZ and 3 others---Respondents

Criminal Revision No. 5 of 2015, heard on 30th March, 2015.

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

----S. 540---Material witness, summoning of---Powers of court---Object and scope---If it appeared to the court that evidence of a person was essential to the just decision of the case, then there was no discretion to prevent such a person from being examined---Power under S. 540, Cr.P.C. to summon a witness may either be exercised suo motu or on an application---In the present case, evidence of the proposed witness seemed to be essential as she was the sole witness of the incident---Revision petition was allowed in circumstances.

Muhammad Khan v. The State 2003 PCr.LJ 1778; Muhammad Usman and 2 others v. The State 1991 MLD 17 and Abdul Khaliq v. Ansar Mehmood 2009 YLR 486 ref.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 rel.

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

----S. 540---Material witness, summoning of---Interpretation and principles of S. 540, Cr.P.C. summarized.

Principles under S. 540, Cr.P.C. are summarized as under:--

i. The power cannot be used either to advance the case of the prosecution or that of the defence.

ii. It is obligatory upon the Court to allow the production and examination of evidence, where it is essential for the just decision of the case.

iii. Once it appears to the Court that the evidence was essential for a just decision then delay in moving the application was not relevant.

iv. The Court has suo motu powers to exercise jurisdiction under the provisions if it appears to it that doing so would be essential for a just decision.

v. The application under section 540 of Cr.P.C. cannot be dismissed summarily by holding that either the witness was not mentioned in the Challan or that it was belated or it might fill up lacuna in the prosecution case, unless the totality of material placed before the Court was considered to find out whether exercising powers would be essential for a just decision of the case.

vi. The Court has to form its opinion as to whether the evidence of any person is essential to the just decision and any order passed ought to reflect an application of a judicial mind.

vii. The Court is vested with wide powers and the same can be exercised at any stage of the case.

viii. The Court shall form its opinion by taking into consideration the facts and circumstances of each case.

ix. The Court has to exercise such powers judiciously and for a just decision of the case. Where a Court finds after an application of mind that the investigations carried out were defective then in such an event it cannot sit idle and becomes a duty to exercise all the enabling provisions under the law including section 540 of Cr.P.C.

x. The object and purpose of exercising powers under section 540 of Cr.P.C. is to reach the truth and meet the ends of justice.

xi. Courts must guard against exploitation of this power by the parties, so as not to allow one of them to be in a position of advantage.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Muhammad Murad Abro v. The State 2004 SCMR 966; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Painda Gul and another v. The State and another 1987 SCMR 886; Dildar v. The State PLD 2001 SC 384; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Abdul Salam v. The State 2000 SCMR 102 and Shahbaz Masih v. The State 2007 SCMR 1631 rel.

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

----S. 540---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Material witness, summoning of---Scope---Application by prosecution for summoning a material witness was dismissed by Trial Court---Prosecution case was that two persons came to the house of complainant and one of them threw acid on him and ran away---Wife of complainant was present at the scene and she appeared to have been the only person, who witnessed the crime---Trial Court did not make any effort to satisfy itself or to consider the two essential ingredients; firstly, whether the person proposed was a material witness and secondly, whether she was essential for a just decision of the case---Trial Court was required to take the entire material and circumstances of the case into consideration, so as to form an opinion whether the summoning of the proposed witness was essential for just decision of the case---Trial Court did not consider the principles and law laid down for deciding application under S. 540, Cr.P.C. and thereby failed to exercise jurisdiction vested in it---Revision petition was allowed in circumstances.

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

----S. 435---Revisional jurisdiction of High Court---Scope---Court had expansive powers under S. 435, Cr.P.C. to satisfy itself as to the correctness, legality or propriety of any finding or order and regularity of any proceedings of the lower court---Said powers could be exercised by the Court on its own motion and, therefore, it was not relevant as to which party placed the information before the Court---Purpose of such power and jurisdiction was to enable the High Court to secure the ends of justice.

(e) Administration of justice---

----Mentioning of wrong provision of law in the petition---Effect---Wrong mentioning of section did not render a petition incompetent or vitiate the proceedings.

Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111 rel.

Jan Muhammad Khan for Petitioner.

Syed Muhammad Tayyab for Respondent No.1.

Sajjad Haider Malik for Respondents Nos. 2 and 3.

2017 P Cr. L J 1351

[Islamabad]

Before Shaukat Aziz Siddiqui and Mohsin Akhtar Kayani, JJ

RASOOL BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 83 of 2012 and Murder Reference No. 1 of 2013, decided on 14th February, 2017.

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

----Ss. 302, 460, 392, 201 & 34---Qatl-i-amd, persons jointly concerned in lurking house trespass by night, robbery, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused was charged for the murder of two persons after committing robbery---Brutal occurrence was un-witnessed and entire case of the prosecution rested on the circumstantial evidence---Incriminating material against accused surfaced in the statements of witnesses including that of Investigating Officer---Accused was arrested on the disclosure of the proclaimed offender---Said disclosure of the proclaimed offender could not be considered in evidence and the only utility of the same was that it enabled the Investigating Officer to arrest accused and to collect the evidence against him---Only incriminating evidence, brought on record by the prosecution against the accused was that, on the day of occurrence he travelled with the principal accused in the flight---After the arrest of the accused, a car and a motorcycle were recovered from him, with the allegation that accused had purchased the same from his share of the looted amount---Travelling of accused with the principal accused in the same flight could not be considered a proof for the participation of accused in the commission of offence---Said incriminating evidence was a mere allegation, without any support from any independent material, as it was not proved that accused had purchased the said vehicles after the occurrence; that the same were registered in his name or that he purchased the same from the amount, which he received from the principal accused---Circumstances established that prosecution had failed to prove the case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Circumstantial evidence---Reliance---Principle---Case resting on circumstantial evidence---Accused could be convicted if only the conclusion of his guilt was drawn from the available circumstances and no possibility existed about the innocence of accused.

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

----Ss. 302, 460, 392, 201 & 34---Qatl-i-amd, persons jointly concerned in lurking house trespass by night, robbery, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Recovery of weapon of offence---Scope---Investigating Officer had deposed that accused led to the recovery of crime weapon (Churri) but accused denied to have led to such recovery---Statements of the prosecution witnesses showed that Churri was allegedly recovered from an open place, which was in access of general public---Such recovery , even on the pointation of accused, was of no value and consideration---Reports of Chemical Examiner and Serologist showed that Churri was stained with human blood but such report could not prove that the Churri was actually used in the occurrence and by the accused---Accused was acquitted in circumstances by setting aside his conviction and sentence recorded by Trial Court.

Muhammad Saleem v. Shabbir Ahmed and others 2016 SCMR 1605 rel.

(d) Criminal trial---

----Evidence---Corroboration---Principle---One tainted piece of evidence could not corroborate other tainted piece of evidence.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

(e) Criminal trial---

----Conviction---Gravity of offence---Principle---Gravity of the offence was no ground to record the conviction.

(f) Criminal trial---

----Benefit of doubt---Scope---Benefit of each and every doubt had to be extended in favour of the accused, as a matter of right and not as a matter of grace.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Basharat Ullah Khan for Appellant.

Ms. Hadia Aziz, learned State Counsel for the State and Syed Feroz Shah on behalf of Legal heirs of both deceased.

2017 P Cr. L J 1407

[Islamabad]

Before Aamer Farooq, J

NOOR EJAZ CHAUDHRY and others---Petitioners

Versus

MAHEEN ZAFAR and others---Respondents

Criminal Misc. No. 162/T of 2017, decided on 24th March, 2017.

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

----S. 526---Transfer of case---Grounds---Powers exercised by court under S.526, Cr.P.C.---Scope---Court could exercise powers to transfer the case on three eventualities---On report of the lower court, on application of a party interested or on its own initiative.

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

----S. 526---Transfer of case---Human Rights Activists sought transfer of case alleging that fair and impartial trial could not take place and that transfer was expedient for the ends of justice---Opponents contended that petitioners were not a "party interested", hence had no locus standi in the matter---Validity---Petitioners had no locus standi in the matter as they being Human Rights Activists could not be regarded as interested party within meaning of S. 526, Cr.P.C.---Petition for transfer of case was dismissed accordingly.

Kanchan Ali v. Shah Jahan and others PLD 1962 Dacca 192; Surraya Begum v. The State and another PLD 1996 Lah. 189; Brahmdutt v. State AIR (37) 1950 Allahabad 483; Muhammad Khan and another v. The State and another PLD 1962 (WP) Karachi 864 and Sardar Shah v. Gurdit Singh AIR 1934 Lah. 612 rel.

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

----S. 526---Penal Code (XLV of 1860), Ss. 337-A(i) & 337-F(ii)---Shajjah-i-khafifah and badiah---High Court (Lahore) Rules and Orders, Vol. III, Chapt. 26---Transfer of case---Matter was referred by the Supreme Court to High Court for determination as to whether the trial in the case was to be conducted by the Judicial Magistrate or the High Court---Record showed that accused was a senior judicial officer (Addl. District and Sessions Judge) and co-accused was his wife---Victim was a minor child aged about 9/10 years and her parents were of no means---One of the allegations against the accused persons was that they had paid a lump sum amount to the parents of victim and kept her as a maid for doing domestic odd jobs---Victim was recovered from the accused persons under peculiar circumstances on the basis of pictures in circulation, of her battered condition, on social media---Matter was pending before Judicial Magistrate, who was subordinate to the accused---Two senior judicial officers, allowed bail before arrest to the accused, which apparently helped their colleague---Validity---Where a fair and impartial inquiry or trial could not be held in any subordinate criminal court or where transfer of case was expedient for the ends of justice, High Court could order any particular case or appeal be transferred to and tried before High Court---Said power/discretion could be exercised by High Court on inter alia its own initiative---Circumstances and facts of the present case established that impartial or fair trial was not possible before the Judicial Magistrate as the said court was subordinate to the accused---High Court (Lahore) Rules and Orders provided that where it was likely that Judicial Magistrate or a Judge might be partial, the matter be transferred---Circumstances of the present case, being sufficient for transfer of the matter, High Court directed that the case be transferred from the court of Judicial Magistrate to the High Court for trial---Order accordingly.

Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327; Rahim Bakhsh v. Khalil-ur-Rehman PLD 1971 Lah. 517; Khuda Bukhsh v. State 1997 SCMR 1383; Muhammad Ashraf and others v. The State 1990 PCr.LJ 1359; Amir Atlas Khan and another v. The State and 2 others 2002 SCMR 709 and Haji Khawar Saleem v. The State 2001 SCMR 905 ref.

Muhammad Nawaz v. Ghulam Kadir and 3 others PLD 1973 SC 327; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Abdul Huq alias Abdul Huq Munshi and others v. Abdul Matleb PLD 1967 Dacca 305 and Zulfiqar Ali Bhutto v. State 1978 PCr.LJ 332 rel.

Shabbir Hussain for Petitioners.

Sardar Taimoor Aslam for Respondent No.2.

Raja Rizwan Abbasi and Sohail Akhtar for Respondent No.3.

M. Ilyas Siddiqui on behalf of parents/child.

Mian Abdul Rauf, Advocate-General, Islamabad.

Ch. M. Siddique Superintendent, Sessions Court, West, Islamabad.

Khalid Mehmood Awan, SHO, P.S., Industrial Area, Islamabad.

Arshad, SI.

2017 P Cr. L J 1469

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Raja KHURRAM ALI KHAN---Petitioner

Versus

Mst. TAYYABA BIBI through father and another---Respondents

Criminal Rev. No. 57 of 2017, decided on 23rd May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 345, 435, 439 & 526---Revision---Maintainability---Case being tried by High Court under its original jurisdiction under S. 526, Cr.P.C.---Application under S.345, Cr.P.C., for recording acquittal of the accused-petitioner on the basis of compromise between the petitioner and parents of respondent-victim---Said application had been dismissed by the High Court, which was assailed before the High Court through revision petition---Validity---Record showed that trial of the petitioner was pending before the High Court and the order impugned was passed in the said proceedings---Case was being tried by the High Court under its original jurisdiction, and High Court was not a 'court inferior' within the meaning of S. 435, Cr.P.C.---Record of the proceedings pending before High Court could not be called for the purpose under S. 439, Cr.P.C.---Circumstances established that petition under S. 439, Cr.P.C., was not maintainable against the order passed by High Court in exercise of original jurisdiction while conducting trial under S. 526, Cr.P.C.---Revision petition was dismissed in circumstances.

Parbati Devi v. The State AIR 1952 Calcutta 835; Krishnaji Vithal Kangutkar v. Emperior AIR (36) 1949 Bombay 29; Ashique Solangi and another v. The State PLD 2008 Kar. 420 and Naseem Akhtar and another v. The State PLD 2010 SC 938 ref.

Malik Firoz Khan Noon, Karachi v. The State PLD 1958 SC (Pak.) 333; Naeem Sabir Mughal v. Nazim alias Nizamuddin and 6 others 1987 PCr.LJ 1656 and Mir Alam Khan v. The State 1980 PCr.LJ 1152 rel.

Raja Rizwan Abbasi for Petitioner.

2017 P Cr. L J 1513

[Islamabad]

Before Aamer Farooq, J

Raja SAJJAD HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 229-B of 2017, decided on 15th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498----Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail before arrest, refusal of---Prosecution case was that accused-petitioner along with co-accused owned a company---Complainant had invested a sum of Rs. two million in the company under the agreement that a sum of Rs. 3.5 million was to be repaid including profit---Accused-petitioner tendered a cheque in that context, which was dishonored when presented---Accused-petitioner sought bail before arrest in the present case, which was allowed on the basis of compromise of the parties---Subsequently, complainant filed an application for cancellation of bail on the basis that the accused-petitioner had breached the terms and conditions of compromise and had not made the payment in accordance with the instalment schedule agreed between the parties---Bail granting order was recalled---Accused petitioner moved application for bail before arrest before the High Court---Maintainability---If bail before arrest was cancelled by the Sessions Court, subsequent application for bail before arrest was not maintainable before the High Court---Remedy, if any, was by way of revision from the order of the court concerned, canceling bail---Even otherwise, no mala fide or ulterior motive had been alleged by the accused-petitioner against the prosecution, which was the sole ground for grant of bail before arrest---High Court dismissed petition for bail before arrest being not maintainable.

Shahid Imran v. The State and others 2011 SCMR 1614; Abdul Rafique alias Qassu v. The State 1994 PCr.LJ 2507; Naseer Ahmed and another v. The State 2009 PCr.LJ 1430 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 ref.

Muhammad Malik Pervaiz v. The State 1968 PCr.LJ 196 and Javed Iqbal v. The State 1999 PCr.LJ 1837 rel.

Ch. Mansoor Ahmad for Petitioner.

2017 P Cr. L J 1540

[Islamabad]

Before Mohsin Akhtar Kayani, J

MAPLE LEAF CEMENT FACTORY LIMITED through Group Director Finance---Petitioner

Versus

FEDERAL INVESTIGATION AGENCY (FIA), ISLAMABAD through Director General and 3 others---Respondents

Writ Petition No. 1617 of 2017, decided on 10th May, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Territorial jurisdiction of High Court---Petitioner who was a cement manufacturer, entered into a business transaction with another company---Petitioner supplied the cement and as per their version nothing was due against the company---Respondent had filed a complaint for recovery of outstanding advance payment---Said complaint was addressed to DG FIA (Islamabad)---Petitioner had received notice issued by Deputy Director FIA (Peshawar)--- Matter related to FIA (Peshawar) whereupon inquiry was issued, therefore, subject matter exclusively fell within the jurisdiction of FIA (Peshawar)---Cause of action for filing of constitutional petition in criminal matters, could only be seen with reference to place of occurrence of crime, major portion of evidence collected in relation to chain evidence and inquiry/investigation carried out in a specific territory---Matter in dispute was under inquiry before FIA (Peshawar) even the Chief Executive of the petitioner company had been called for the submission of requisite documents and details at Peshawar---Competent Court of Peshawar had the jurisdiction in the matter---Constitutional petition filed before Islamabad High Court was dismissed.

Jamshoro Joint Venture and another v. Federation of Pakistan and others 2016 PCr.LJ 1056 rel.

2017 P Cr. L J 1569

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Dr. JOSEPH WILSON---Petitioner

Versus

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

W.P. No. 1350 of 2017, decided on 20th July, 2017.

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

----S. 2(2)---Constitution of Pakistan, Arts. 2-A, 4 & 10-A---Exit Control List---Placing name on list---Precondition---Before making an order for placing of a person's name on Exit Control List, it is not necessary under S. 2(2) of Exit from Pakistan (Control) Ordinance, 1981 for Federal Government to afford an opportunity of showing cause to person whose name is to be placed on Exit Control List---Such provision cannot be construed as an open licence to authorities to place any citizen's name on Exit Control List without affording an opportunity of hearing to person concerned---Opportunity of hearing is an essential postulate of due process recognized in Arts. 2-A, 4 & 10-A of the Constitution.

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

----S. 2---National Accountability Ordinance (XVIII of 1999), S. 18---Exit Control List---Standard Operating Procedure, violation of---Petitioner was an accused facing inquiry/investigation before National Accountability Bureau on allegation of corruption and corrupt practices where amount involved was Rs. 21 million---Federal Government placed name of petitioner on Exit Control List on asking of National Accountability Bureau---Validity---Mere fact that an inquiry/ investigation was being conducted by National Accountability Bureau or any other agency against petitioner was not by itself a sufficient reason to place his name on Exit Control List---Even pendency of criminal proceedings including proceedings before Accountability Court (without an order or a request from Court for curtailing an accused's freedom to travel abroad) was not a sufficient ground to place name of a citizen on Exit Control List---Petitioner was alleged to have caused loss of Rs. 21 million by misusing his authority and in terms of National Accountability Bureau's own Standard Operating Procedure, case of petitioner was a low priority case, although provisions of National Accountability Ordinance, 1999 have not placed any impediment before National Accountability Bureau to take cognizance of cases where loss caused to exchequer was less than Rs. 100 million as a consequence of corruption, corrupt practice or misuse of authority (as long as requisite approvals from Chairman National Accountability Bureau were obtained) yet authorities should have taken into account Standard Operating Procedure of National Accountability Bureau before restricting Fundamental Right of petitioner to travel abroad---Federal Government should have also taken into account that after commencement of inquiry against petitioner he had proceeded abroad on three occasions and returned to Pakistan---High Court directed Federal Government to remove name of petitioner from Exit Control List and had set aside order in question---Constitutional petition was allowed in circumstances.

The State v. Hanif Hyder 2016 SCMR 2031; Federation of Pakistan v. General (Retd.) Parvez Musharraf PLD 2016 SC 570; Pakistan Muslim League (N) v. Federation of Pakistan through Secretary, Ministry of Interior PLD 2007 SC 642; Riaz Ahmed v. Government of Pakistan PLD 2014 Isl. 29; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior PLD 1997 Lah. 617; Kent v. Dulles 357 U.s. 116 (1958); Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; United Bank Limited v. Federation of Pakistan 2014 SCMR 856; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior PLD 2010 Lah. 230; Shaikh Muhammad Mansoor v. Government of Pakistan through Secretary, Ministry of Interior 2008 MLD 955; Sohail Latif v. Federation of Pakistan through the Secretary, Ministry of Interior PLD 2008 Lah. 341; Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior PLD 2010 Lah. 697; Masood Ahmed v. Federation of Pakistan through Secretary, Ministry of Interior 2010 YLR 28; Mian Munawar Ahmed v. Federation of Pakistan 2008 YLR 1508; Zurash Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary, Ministry of Interior PLD 2011 Kar. 385; Mst. Nasreen Begum v. Ministry of Interior PLD 2012 Isl. 17; General (R) Pervez Musharraf v. Pakistan through Secretary Interior PLD 2014 Sindh 389; Syed Masood Hussain Shah v. Federation of Pakistan 2015 MLD 124; Mohammad Sadiq v. Federation of Pakistan PLD 2016 Sindh 263; Tanvir Hussain Manji v. Federation of Pakistan 2016 CLC 1534; Yousaf J. Ansari v. Government of Pakistan through Secretary, Ministry of Interior PLD 2016 Kar. 388; Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 and Watan Party through President v. Federation of Pakistan PLD 2006 SC 697 ref.

Farooq Amjad Meer, Advocate Supreme Court for Petitioner.

Chaudhry Abdul Khaliq Thind, Deputy Attorney-General, Imran Shafique, Special Prosecutor NAB with Ahmad Saeed Wazir, Deputy Director/I.O. NAB and Muhammad Azeem Akhtar, Assistant (ECL) Ministry of Interior for Respondents.

2017 P Cr. L J 1

[Sindh]

Before Muhammad Ali Mazhar and Zulfiqar Ahmad Khan, JJ

Mrs. FARHANA MUZAFFAR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and 4 others---Respondents

C.P. No. D-3644 of 2014, decided on 13th June, 2016.

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

----Ss. 6 & 34-A--- Chairman National Accountability Bureau---Delegation of powers---Gap in appointment of Chairman---Effect---Appointment of Chairman NAB and delegation of his authority are two different issues---Procedure of appointment of Chairman NAB is cumbersome and one is appointed by the President of Pakistan directly, there can be a gap between the period of an earlier NAB Chairman leaving and new incumbent taking over the charge---Such gap cannot give benefit or open a flood gate for those involved in corruption and plundering public money on account of such gap.

Syed Adnan Rasheed v. National Accountability Bureau PLD 2014 Sindh 334; Al-Jehad Trust v. Federation of Pakistan PLD 2011 SC 811; Niaz A. Baloch v. Chairman NAB 2008 MLD 1451 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 rel.

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

----S. 9(a)(iv)(v)(vi) & (b)---Bail, refusal of---Petitioner was accused in reference filed by NAB alleging that he as a Banker caused loss to the Bank---Validity---Petitioner was the leading accused in the Reference and per account details provided for period commencing 1-1-2009 to 31-12-2010, only in his account over 59 million Rupees were deposited for his personal benefit and for the benefit of his wife---Accused was involved in the offence cognizable under National Accountability Ordinance, 1999---Earlier bail granted to accused was ordered to be withdrawn by High Court.

Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109 rel.

Muhammad Anwar Tariq for Petitioner.

Muhammad Altaf Awan, A.D.P.G. (NAB) along with Abdul Fatah, I.O. for Respondents.

2017 P Cr. L J 34

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

NAMOOS KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 246 of 2007 and Confirmation Case No.7 of 2007, decided on 22nd March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(a) & 302(b)---Qatl-i-amd---Appreciation of evidence---Complainant, a boy of 13/14 years old, who was mature at the time of incident, was sole witness of the occurrence---Evidence of complainant was quite reliable and trustworthy for the reason that the manner and detail of the incident as narrated by him was natural---Complainant/eye-witness reasonably explained his presence at the spot, and his narration of occurrence inspired confidence---Accused persons being closely related to the complainant, he faced no difficulty to identify accused persons---Despite lengthy cross-examination, evidence of the complainant could not be shattered---Evidence of complainant was fully corroborated by medical evidence and report of Chemical Examiner regarding blood stained earth, quilt and hatchet---Defence had failed to point out any material contradiction, omission or improvement---Minor contradictions or improvements in the statement of witnesses, were to be overlooked; only material contradictions were to be considered---Was not believable that complainant had made false statement to let off the real culprits and substitute innocent persons in their place---Substitution was a rare phenomenon---Conviction, even in murder case could be based on the testimony of a single witness, if court was satisfied that said sole witness was reliable---Quality and not quantity of evidence would matter---Evidence of the complainant was fully supported by Chowkidar who reported the matter to the Police that complainant/boy was weeping on the roof of adjacent building and Police came and rescued him---Medical evidence corroborated the version of the complainant that deceased had died by means of sharp cutting weapons---Prosecution had proved motive at trial---Evidence of complainant boy could not be rejected only on the ground that he was brother of the deceased persons---Report of Chemical Examiner, regarding blood-stained clothes and hatchet, was positive---Prosecution had proved its case against accused persons and defence theory was an afterthought and had been rightly rejected by the Trial Court---Trial Court properly appraised evidence and awarded death sentence to accused persons in triple murder case---No mitigating circumstance had been pointed out for reduction of the sentence---Death sentence in a murder case was a normal penalty, especially when accused persons had committed triple murder in cruel and callous manner---Tazkia-tush-Shahood test of eye-witness was not done in the case, sentence under S. 302(a), P.P.C., Qisas was not sustainable in law; it was converted to S.302(b), P.P.C., death as Tazir on three counts, in circumstances.

Abid Ali and 2 others v. The State 2011 SCMR 208; Muhammad Javaid v. The State 2007 SCMR 324; Ulfat Hussain v. The State 2010 SCMR 247; Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706; Zaitoon Bibi and others v. The State 1998 PCr.LJ 1680; Irshad Ahmed and others v. The State and others PLD 1996 SC 138; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Raqib Khan v. The State 2000 SCMR 163; Dadullah and another v. The State 2015 SCMR 856 and Manzoor and others v. The State and others 1992 SCMR 2037 ref.

Abdul Razzak for Appellants.

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

2017 P Cr. L J 65

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon, J

PIR ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-527 of 2013, decided on 10th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-H(2) & 34---Juvenile Justice System Ordinance (XXII of 2000), S. 10(7)(a)(c)---Qatl-i-amd, hurt by rash or negligent act, common intention---Bail, grant of---Accused, a juvenile---Delay in conclusion of trial---Statutory right of bail---Accused was continuously in custody for the last two years---Delay occurred during such period was not shown to have been on the part of accused---Every child had statutory right of bail irrespective of nature of offence if he had remained in custody for a continuous period exceeding one year and his trial had not been concluded except for the child of 15 years or above if he was involved in an offence which was serious, henious, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of an offence punishable with death or imprisonment for life---Nothing was on record that accused was a previous convict in any case or dangerous or desperate---Mere registration of FIR was no valid ground for refusal of bail until and unless accused had been convicted in a case of like nature---Abscondence per se was not a proof of guilt of an accused person and bail could be granted if accused had good prima facie case for bail on merits---Accused had made out a prima facie case for grant of bail on the ground of statutory delay in trial---Accused was granted bail subject to furnishing surety in the sum of Rs.3,00,000/- in the like amount to the satisfaction of Trial Court.

Wahid Bux Khoso v. The State 2006 MLD 507; Afsar Zamin v. The State PLD 2002 Kar. 18; Sikandar v. The State 2006 PCr.LJ 1648; Mehar v. The State 2009 PCr.LJ 47; The State v. Mukhtiar Ahmad Awan 1991 SCMR 322 and Syed Qamar Alam v. The State 2014 YLR 497 ref.

Mitho Pitafi v. The State 2009 SCMR 299 and Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 rel.

A. R. Farooq Prizada for Applicants.

Asif Ali Abdul Razak Soomro for the Complainant.

Ali Haider Saleem, Assistant Prosecutor General for the State.

2017 P Cr. L J 92

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

RIAZ ALI---Petitioner

Versus

SESSIONS JUDGE AND EX-OFFICIO JUSTICE OF PEACE, HYDERABAD and 3 others---Respondents

Constitutional Petition No.S-17 of 2015, decided on 27th May 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154 & 155(1)---Registration of FIR---Ex-Officio Justice of Peace, refusing to order of registration of FIR, directed the petitioner to file direct complaint---Validity---Officer in-charge of the police station was required to record an FIR in the relevant book kept at the police station under S. 154, Cr.P.C., and if from the information given to him prima facie a cognizable offence was made out, and in case the information disclosed a non-cognizable offence, then, in terms of S. 155(1), Cr.P.C., the officer in-charge of the police station was required to enter substance of such information in the relevant book kept at the police station and refer the informant to the Magistrate; thus, in cases both cognizable offence and non-cognizable offence, the officer in-charge of police station could not refuse to enter information in the relevant book as the same might be---Dispute between the parties, in the present case, was over a shop, and the information provided to the police by the petitioner disclosed a non-cognizable offence, which, therefore, had been recorded as such in the station diary of the police station, and the Ex-Officio Justice of Peace had also set the petitioner at liberty to avail the remedy of direct complaint---Exercise of extraordinary jurisdiction by High Court under Art. 199 of the Constitution was conditional upon the non-availability of any other adequate remedy---Present petition, therefore, was not maintainable---Constitutional petition was dismissed in circumstances.

Taj Muhammad Keerio for Petitioner.

Allah Bachayo Soomro, Additional A.G. Sindh along with SIP Muhammad Changal on behalf of SSP, Hyderabad for Respondents.

2017 P Cr. L J 143

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD SHABBIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.815 of 2016, decided on 1st July, 2016.

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

----S. 497---Emigration Ordinance (XVIII of 1979), S. 22(b)---Receiving money, etc. for providing foreign employment---Bail, grant of--- Further inquiry---Delay of one year in registration of case---Effect---Complainant had not explained the delay of one year in registration of the FIR, which prima facie showed that the FIR had been recorded after due deliberations and consultation---Nothing had been recovered from the accused during the investigation---Accused was the employee of the Company, but no case had been registered against the Company---Nothing was available on the record to show that the accused had forcibly demanded the amount of money involved in the case---FIR of present case and the application sent by the complainant to Director Emigration and Passport, FIA, contained different amounts of money regarding which fraud had been allegedly committed by the accused---Dispute between the parties appeared to be in respect of the money, which the accused had received from the complainant for sending him abroad along with work permit, but he had failed to fulfill his commitment; therefore, the question whether the accused had committed the fraud was yet to be determined by the trial court and till then, the case required further inquiry---Section 22(b) of Emigration Ordinance, 1979 carried an alternate punishment and fine also; hence, the offence came out of the prohibitory clause of S. 497, Cr.P.C.---Nothing was available on the record to show that the accused had been a previous convict or involved in similar type of cases---Accused was no more required for investigation---Bail application was allowed accordingly.

Hamid Ali v. The State 2009 SCMR 734 rel.

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

----S. 497---Bail---Principles---Accused cannot be kept in jail for an indefinite period as a measure of advanced punishment.

Hamid Ali v. The State 2009 SCMR 734 rel.

Ms. Naila Tabassum for Applicant.

Ashfaq Rafiq Janju, Standing Counsel along with Investigating Officer/S.I. Shabbir Ahmed Chandio, A.H.T., Circle, Karachi and Mirza Tanveer Ahmed, Inspector Legal, FIA for the State.

2017 P Cr. L J 160

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

ABDUL JABBAR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-16 and 18 of 2014, decided on 29th June, 2016.

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

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for extorting property, valuable security---Act of terrorism---Appreciation of evidence---Entire prosecution case was based on the evidence of the complainant, alleged abductee and one eyewitness---Alleged abductee had been recovered from the custody of the accused, but he had appeared before the police on his own volition along with the complainant---No ransom had been paid to the accused or any other person---FIR in question contained nothing about the amount of money demanded as ransom---Prosecution witnesses had made improvements in their statement before court by deposing that the accused had demanded Rs. fifty lac as ransom---Alleged abductee had deposed that after seven days of his abduction all the accused persons had demanded ransom from his relatives through cell phones, but the complainant had not stated anything about the same---Prosecution witnesses had exaggerated the FIR story during their examination before the court by introducing new facts---Some of the accused persons were already known to and relative of the complainant and the alleged abductee, but still the accused persons had been shown as unidentified to the complainant and the witnesses in the FIR though they were all with open faces at the time of occurrence, which created doubt in the prosecution story---Prosecution story appeared to be cock and bull story---Presence of the eye-witnesses, in the circumstances of the case, appeared to be doubtful----No independent witness from the village had been cited in the case---Evidence of the Investigating Officer was contradictory to the evidence of the alleged abductee---Alleged abductee, in his statement recorded under S. 164, Cr.P.C. had not stated if the complainant and the eye-witness were present with him at the time of the incident---Abductee had stated in his statement under S. 164, Cr.P.C. to have been alone at the time of the incident and that the accused persons had been identified on the vardat; thus, his said statement was not consistent with the version given in the FIR as well as the statements of the other prosecution witnesses, and as such, the same was not helpful to the prosecution---High Court, setting aside the conviction, acquitted the accused---Appeal was allowed accordingly.

(b) Criminal Trial---

----Benefit of doubt----Benefit of doubt has to be given to the accused without any reservation, where evidence creates doubts about the truthfulness of the prosecution case.

Asif Ali Abdul Razzak Soomro for the Appellants (in Criminal Appeal No.D-16/2014).

Ahsan Ahmed Qureshi for the appellant (in Criminal Appeal No.D-18/2014).

Ali Haider Saleemi, APG for the State.

Abdul Hakeem Brohi for Complainant.

2017 P Cr. L J 174

[Sindh]

Before Naimatullah Phulpoto and Nazar Akbar, JJ

ASLAM SURHIANI and another---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No.17 of 2012, decided on 10th March, 2016.

Penal Code (XLV of 1860)---

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), Ss. 7(e), 17 & 21-M----Acts of Terrorism: kidnapping for ransom or hostage-taking---Appreciation of evidence---Benefit of doubt---Power of Anti-Terrorism Court with respect of other offences---Joint trial---Anti-Terrorism Court had not charged the accused persons for the offence of carrying illegal fire arm weapon with them and attacking on the police at the time of encounter, arrest and rescue of the abductee in terms of Ss. 17 & 21-M of Anti-Terrorism Act, 1997; said fact was enough to believe that the prosecution had failed to discharge burden of proof beyond reasonable doubt---Prosecutor offered no justification as to why the cases under Arms Ordinance and police encounter had not been jointly challaned in the Anti-Terrorism Court in terms of Ss. 17 & 21-M of Anti-Terrorism Act, 1997---No proof of the police encounter existed, as neither of the parties had sustained any injury during 10/15 minutes' cross firing between the accused and police party, nor were the police vehicles damaged by any fire-arm shot---Police party which chased the accused was missing, and till to date said police party had not reported at the police station from where they had gone under instruction of their superiors to apprehend the accused---Police had even failed to prove the departure of the police party from the police stations on the date of recovery of the abductee, as the relevant entry in the police record to that effect had not been produced in evidence without any justification---Investigation Officer never visited the place of the encounter and the recovery of weapons and the abductee---Police had neither recovered the empties of the weapons from the place of encounter, nor had the weapons been sealed properly---Prosecution witness/Investigation Officer had neither produced any memo of the place of police encounter nor any ballistic report of the weapons recovered by the police nor empties of any weapon used by the accused; withholding such important pieces of evidence confirmed that right from the beginning, the story of recovery of the abductee from the captivity of the accused was false---Memo of arrest of the accused and recovery of the abductee had been neither countersigned by the abductee nor witnessed by him---Abductee, at the first instance, had refused to identify the accused in the court, and checking his statement, he deposed that the accused persons were like the same person present in the Court---Complainant had disowned his further statement recorded by the police as to demand of ransom by an unknown person through mobile phone calls; the prosecution had not produced any cogent evidence such mobile data of the cell phones to substantiate the story regarding demand of ransom---Prosecution had not offered any explanation for delay in recording further statement of the complainant after three days of the release of his son and statement of the abductee after twelve days of his release---Belated statements of the prosecution witnesses had no value in the eye of law---Prosecution had failed to prove charges under the Arms Ordinance and police encounter, and without commission of said offences, offence under S. 365-A, P.P.C. could not be said to have been committed---None from the raiding party had been mentioned in the list of witnesses to confirm that they were also present at time of the police encounter---Accused persons present had already been acquitted from the charges of possessing illegal weapons and attack on the police party---Abductee had neither signed the memo of his recovery nor was his cell phone and its number was mentioned in the Mashirnama---High Court, giving benefit of doubts, acquitted all the accused persons--- Appeal was allowed accordingly.

Khalid Javed v. State 2003 SCMR 1419; Saeed Muhammad Shah v. State 1993 SCMR 550; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214 and Zeeshan v. State 2012 SCMR 428 ref.

Pehlwan v. State 2000 PCr.LJ 299; Muneer Ahmed v. State 1998 SCMR 752 and Ghulam Hussain Soomro v. State PLD 2007 SC 71 distinguished.

Ghulam Qadir v. State 2008 SCMR 1221; Abdul Sattar v. State 2002 PCr.LJ 51 and Saeed Muhammad Shah v. State 1993 SCMR 550 rel.

A. Q. Halepota for Appellants.

Abrar Ali Khichi, APG for the State.

2017 P Cr. L J 219

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUHAMMAD HAYAT---Appellant

Versus

RAFIQ and 5 others---Respondents

Criminal Acquittal Appeal No.S-101 of 2010, heard on 3rd September, 2015.

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

----Ss. 457 & 380---Criminal Procedure Code (V of 1898), Ss. 249-A & 417(2-A)---Lurking house-trespass or house-breaking by night in order to commit offence; theft in dwelling house etc.---Appeal against acquittal---Appreciation of evidence---Power of Magistrate to acquit accused at any stage---Complainant had not lodged the FIR instantly after the incident, though he was a retired police personnel---FIR had been lodged with a delay of three days, for which no plausible explanation had been furnished by the complainant---Complainant, admittedly, was not present at the house at the time of theft, nor any other person had witnessed the accused persons committing the alleged theft, nor any stolen articles had been recovered from their possession---Best evidence available on the record with the complainant was that someone had told the complainant that the persons, with whom he was in dispute over the landed property, had committed the alleged theft---Prosecution witnesses were not the eye-witnesses of the alleged offence, as they were only suspecting the accused persons to be the culprits, merely on the ground that the accused persons had been in dispute with the complainant over the property---In absence of any tangible evidence, there was no probability of conviction of the accused on the basis of available evidence, and further trial of the case would be a futile exercise---Impugned order of acquittal, considering the facts and circumstances of the case, was just and proper and the same did not call for any interference---Appeal against the acquittal was dismissed accordingly.

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

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Scope---Section 249-A, Cr.P.C. empowers the court to acquit an accused at any stage of the proceedings even before framing of the charge if there is no possibility of conviction of the accused for alleged offence---Incumbent upon the Magistrate to afford an opportunity to the prosecutor as well as accused persons to argue the merits of the case on the basis of material available with the prosecution.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Object---Wisdom and scheme provided under S. 249-A, Cr.P.C. is to save an innocent person from lengthy trial for the charges, which are groundless and ultimately accused will be acquitted.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Principle---Mere difference of opinion regarding appreciation of evidence is not a cogent reason for setting aside the acquittal order.

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

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

----Ss. 249-A & 417(2-A)----Power of Magistrate to acquit accused at any stage---Scope---Presumption of innocence of accused is double in case of acquittal, and the court would not interfere, unless the conclusion drawn by the Trial Court is not supported by the evidence available on the record.

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

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

----S. 249-A--- Power of Magistrate to acquit accused at any stage---Scope---Recording of prosecution evidence is not mandatory condition while passing the acquittal order under S. 249-A, Cr.P.C.

Zulfiqar Ali Naich for Appellant.

Abdul Rehman Kolachi, A.P.G.

2017 P Cr. L J 228

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

ABDUL RAHIM---Appellant

Versus

ALI BUX and 4 others---Respondents

Criminal Acquittal Appeal No. D-05 of 1999, decided on 28th June, 2016.

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

----Ss. 147, 148, 302 & 114---Criminal Procedure Code (V of 1898), Ss. 417 & 103---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Recovery of hatchets---No independent witness---Preparation of memos of injuries---No independent witness of the locality was associated by the police for recovery of hatchet which was shown to have been recovered from the house of the accused persons---Mashirs of recovery were the son, brother of deceased and complainant respectively---Recovery of hatchet was not rightly taken into consideration by the Court---Prosecution witness in the cross-examination deposed that memo of injuries was prepared after 10/12-days of the incident although the injuries were seen by police on the day of incident which also made the case of prosecution as doubtful---Trial Court rightly acquitted the accused by extending them the benefit of doubt.

Muhammad Afzal v. The State 1983 SCMR 1; Yar Muhammad v. The State 1992 SCMR 96 and Mangio v. The State 1976 PCr.LJ 243 rel.

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

----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Presumption of innocence of accused--- Interference in judgment of acquittal--- Scope---Considerations for interference in an appeal against acquittal and in an appeal against conviction were altogether different; in former an accused was presumed to be innocent and after his acquittal in trial or appeal he earned a double presumption of innocence i.e. first at pre-trial stage and second on the basis of judgment of acquittal by the court of competent jurisdiction; heavy burden lies on the prosecution to rebut the said presumption and judgment of acquittal can only be interfered with if it is found on the face of it as perverse, arbitrary, suffering from error of jurisdiction, mis-reading or non-reading of evidence and capricious or speculative.

Muhammad Tasweer v. Hafiz Zulkarnain PLD 2009 SC 53; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Muhammad Minzha Kausar v. Muhammad Asghar 2003 SCMR 477 and Paio Khan v. Sher Biaz 2009 SCMR 803 rel.

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

----Ss. 147, 148, 302 & 114---Criminal Procedure Code (V of 1898), S. 417---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Identification of culprits---Torch as source of light---Principle---Source of identification of culprits was shown as torchlight which was weak type of source and unsafe to be relied upon---Trial Court rightly acquitted the accused by extending them the benefit of doubt.

Hakim Ali's case 1996 PCr.LJ 231 and Aurangzeb's case 2008 PSC (Cr.) 965 rel.

(d) Criminal trial---

----Medical evidence---Contradiction with evidence of eye-witness---Such contradictory medical evidence made the case of prosecution as doubtful.

Bagh Ali v. The State 1983 SCMR 1292; Ghulam Abbas v. M. Sadiq 2004 MLD 1900 and Mangio v. The State 1976 PCr.LJ 243 rel.

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

----Ss. 302, 147, 148 & 114---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd---Rioting armed with deadly weapon---Abettor present when offence committed---Appeal against acquittal---Appreciation of evidence---Blows of hatchet---No witness from villagers/independent witness---Two prosecution witnesses were the brothers and sons of complainant and deceased respectively, whereas another prosecution witness was their caste fellow and neighbour---No independent witness was examined---None of the prosecution witnesses including the complainant had seen the incident---Accused was rightly acquitted.

Bashir Ahmed v. The State 1996 SCMR 308; Muhammad Sharif v. Tahir-ur-Rehman 1972 SCMR 144 and Ali Muhammad v. The State 2007 YLR 894 rel.

Ali Nawaz Ghanghro for Appellant.

Shamasuddin Abbasi for Respondents Nos.1 to 4.

Muhammad Iqbal Awan, A.P.G.

2017 P Cr. L J 269

[Sindh]

Before Shahnawaz Tariq, J

SIKANDER ALI QURESHI---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Constitutional Petition No.D-7451 of 2015, heard on 29th December, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 9(b)---Criminal Procedure Code (V of 1898), S.497(2)---Bail, grant of---Cheating members of public at large---Medical ground---Case of further inquiry---Petitioner was Sub-Registrar at the office of Board of Revenue and he was arrested by National Accountability Bureau on the allegation that he registered documents with lesser amounts than the due amount, cheated members of public at large and caused loss to national exchequer---Plea raised by accused was that he charged duties on the basis of valuation notified by Provincial Government and that he was suffering from kidney disease---Validity---Authorities failed to show that there was any criminal act of financial nature, within the meaning of S. 9(a)(ix) of National Accountability Ordinance, 1999, committed by accused to cheat or defraud public at large or caused loss to public exchequer---More substantial evidence was needed to prove criminal liability of accused, which could only be done at trial---Prosecution case was entirely based on documentary evidence which after collection was lying in custody of NAB authorities and there was no question of tampering with the same---Allegation against accused with regard to his participation in the offence was yet to be proved by prosecution as such his further detention would not serve any useful purpose---Investigation had already been completed and accused was no more required for further investigation---Accused had made out a case of further inquiry within the meaning of S. 497(2), Cr.P.C.---Acute sickness and ailment of accused could not be properly treated in jail premises which required specialized treatment and proper care was not possible in jail---Continuous detention of accused in jail would be detrimental and harmful to his life---Accused was entitled to bail on medical grounds also---Bail was allowed in circumstances.

Haji Mir Aftab v. The State 1979 SCMR 320; Imtiaz Javed v. The State PLD 2008 Kar. 522; Muhammad Boota v. The State 2013 PCr.L.J 318; Abdul Hadi Siddiqui v. National Accountability Bureau 2015 PCr.LJ 185; Manzoor Ali v. The State 2013 PCr.LJ 649; Sanjay Chandra and others v. Central Bureau of Investigation and others 2012 SCMR 1732; Muhammad Zafar Maniar v. Shahzad Ahmed and another 2011 MLD 602; Anwar Ahmad v. Chairman, National Accountability Bureau and others in C.P. No. D-4567 of 2015; Abdul Aziz Khan Niazi v. The State through Chairman NAB Islamabad PLD 2003 SC 668; Saeed Ahmed v. The State 1996 SCMR 1132; Ijaz Akhtar v. The State 1978 SCMR 64 and Muhammad Saeed Hadi v. The State and 2 others 2002 SCMR 282 ref.

Aamir Mansoob Qureshi and Muhammad Rehman Ghous for Petitioner.

Noor Muhammad Dayo, D.P.G. NAB for Respondents.

Dilawar Hussain, Standing Counsel.

2017 P Cr. L J 299

[Sindh]

Before Syed Muhammad Farooq Shah, J

MOHAMMAD ZULFIQAR---Applicant

Versus

COURT OF ASSISTANT COMMISSIONER and 4 others---Respondents

Criminal Misc. Application No.237 of 2015, decided on 5th May, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Inherent jurisdiction of High Court---Dispute concerning immovable property---Breach of peace---Decision of Civil Court---Petitioner assailed notice issued by Trial Court regarding proceedings under S. 145, Cr.P.C.---Validity---If Magistrate was satisfied that dispute likely to cause breach of peace existed, and it was on such satisfaction alone that he could make a preliminary order under S. 145(1), Cr.P.C. and thereafter made inquiry for deciding whether any and if so, which of the parties at the date of the order was in possession and thereafter the Magistrate could proceed if emergent situation causing threats to peace existed---Magistrate had no jurisdiction to make an order regarding subject of dispute--- Magistrate could make final order under S. 145, Cr.P.C. if there was continuing danger for breach of peace till that time---Proceedings under S. 145, Cr.P.C. were temporary in nature and were subservient to finding of Civil Court, when Civil Court was seized of the matter and had passed an order in accordance with the circumstances of the case---When order of Civil Court had attained finality, no other authority had any power to interfere into the jurisdiction of Civil Court---Jurisdiction under S. 145, Cr.P.C. of Magistrate concerned did not depend on a police or information received from any other quarter but it depended on his being satisfied about the existence of dispute likely to cause breach of peace and further proceedings or nature of the orders to be passed by him were conditioned on such satisfaction---Neither the Magistrate passed preliminary order nor a final order but he initiated proceedings on police report regarding breach of peace, therefore, notice issued under S. 145(1), Cr.P.C. to both the parties was not termed an illegal act amounted to abuse of process---Inherent powers on High Court under S. 561-A, Cr.P.C. were meant for doing substantial justice, to prevent abuse of process of Criminal Procedure Code, 1898, or that of law and to pass any order by High Court securing ends of justice---Extraordinary circumstances did not exist so as to override express provisions of S. 145, Cr.P.C.---High Court declined to interfere in the matter and did not quash the proceedings before Magistrate as he had not violated any provision of law by committing gross irregularities or infirmities---Application was dismissed in circumstances.

Muhammad Ali Waris Lari for Applicant.

Kashif Hanif for Respondent No.2.

Saleem Akhtar, APG for the State.

2017 P Cr. L J 327

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar, J

QAISER and 2 others---Appellants

Versus

The STATE---Respondent

Cr. Jail. Appeal. No.S-68 of 2010, decided on 8th January, 2016.

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

----S. 302---Qatl-i-amd---Proof---Principle---Establishing death to be unnatural is never sufficient to convict accused sent up to face trial---Prosecution continues under same bounden obligation and duty to establish beyond shadow of doubt that it was or were, as the case may, accused who caused unnatural death.

Abdul Majeed v. The State 2011 SCMR 941 rel.

(b) Criminal trial---

----Conviction---Principle---Conviction cannot sustain where direct evidence (ocular evidence) fails.

2007 SCMR 1535 rel.

(c) Criminal trial---

----Witness---Dishonest---Scope---Moment witnesses attempt to improve their statements with an object to bring their testimony in line, it loses credibility and steps into term 'dishonest'.

2007 SCMR 1825 and 2011 SCMR 1517 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Common intention---Proof---Benefit of doubt---Three brothers and their father were alleged to have committed murder but during investigation father of accused persons was declared innocent---Trial Court convicted three accused persons for committing murder and they were sentenced to imprisonment for life---Validity---Complainant (father) and eye-witnesses (real brothers), if were believed to be present at the spot at the relevant time, then it was quite illogical that those blood-relations neither attempted to intervene while their son/brother was being murdered and they even did not touch the dying man lest to know whether he had succumbed to injuries or otherwise---Such attitude was not worth believing rather the same had brought serious cloud over claim of witnesses of ocular account that they were present at relevant time---Element of common intention must have been proved/established which was never proved/established by prosecution through ocular evidence as witnesses of ocular account said nothing except that all accused caused hatchet injuries to deceased---Seating of injuries on the person of deceased also caused doubt towards claim of prosecution that such injuries were caused by all accused with hatchet---Prosecution failed in proving motive nor shaky ocular account was shouldered by other pieces of evidence---High Court observed that it was not safe to hold such conviction, as single dent in prosecution case was sufficient to extend benefit of doubt in favour of accused persons---High Court set aside conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge--- Appeal was allowed in circumstances.

Liaquat Ali v. State 2011 SCMR 910 rel.

Habibullah Ghouri for Appellants.

Khadim Hussain Khoohoro, A.P.G. for the State.

2017 P Cr. L J 380

[Sindh]

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

IQBAL AHMED BABLANI and others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB) and 3 others---Respondents

C.Ps. Nos.D-3813 of 2015 and D-1219 and D-766 of 2016, decided on 23rd May, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)(vi) & (b)--- Bail, refusal of---Illegal pecuniary advantage---Causing loss to national exchequer---Plea bargaining by co-accused---Eleven vehicles/heavy machinery were to be supplied by company of accused for which it had been given full advance payment to the knowledge of official accused persons--- Only six vehicles/ machinery were delivered and co-accused gave false receipt for eleven vehicles knowing fully well that only six had been delivered---Effect---No justification existed for any advance payment to be made in tender of such nature let alone for full amount i.e. for supply of heavy vehicles where payment on delivery was to be preferred / usual course---Balance of advance payment, which was not spent on 6 delivered vehicles, was to be split among accused persons out of which two had entered into "Plea Bargaining", who acknowledged their guilt and returned their share of ill-gotten gains which they received---Scam was carried out by accused persons in connivance and collusion with one another---High Court declined to grant bail to accused persons as documents including banking document linked them to offences for which they had been charged---Constitutional Petition was dismissed in circumstances.

Muzammil Niazi v. The State PLD 2003 Kar. 526; Muzaffar Ayaz Abid Baloch v. NAB, Sindh 2008 SCMR 1316; The State and others v. M. Idress Ghauri and others 2008 SCMR 1118; Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another PLD 2008 SC 438; Ch. Zulfiqar Ali and others v. The State 2009 YLR 1637; Ramzan Ali Hemani v. NAB 2010 MLD 75 and Anwarul Haq Qureshi v. NAB and another 2008 SCMR 1135 distinguished.

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

Shaukat Hayat for Petitioner (in C.P. No.D-3813 of 2015).

M. Zafar Alam and Shahnawaz Mallick for Petitioners (in C.P. No.D-766 of 2016).

Wazir Hussain Khoso for Petitioner (in C.P. No.D-1219 of 2016).

Noor Muhammad Dayo, Special Prosecutor NAB for Respondents.

2017 P Cr. L J 416

[Sindh]

Before Irfan Saadat Khan and Mohammed Karim Khan Agha, JJ

MUKARRAM ALAM and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

C.Ps. Nos.D-1592, D-1663, D-1907 and D-1822 of 2016, decided on 5th September, 2016.

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

----S. 9(a)(iv)(vi) & (b)---Bail, grant of---Mens rea---Proof---Petitioner was arrested by NAB for causing loss to Bank---Validity---Matter related to lease of machinery where NAB found mortgage to be genuine---Down payment was made after which default was made on the loan---Loan was made to an employee who existed but who did not have the capacity to enter into lease agreement and subsequently disappeared---Petitioner was only involved in one transaction, therefore, entitled to benefit of doubt---Mens rea of petitioner and whether there was any criminal involvement on his part in respect of one transaction in question was to be determined by Trial Court on the evidence which would be produced before it---Bail was allowed in circumstances.

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

----S. 9(a)(iv)(vi) & (b)---Bail, grant of---Fraudulent loans---Medical problem---Treatment in prison---Petitioner was Vice-President and Chief Manager of Bank who was arrested by NAB on the allegation that he approved granting of 13 leases amounting to approximately Rs.40.324 million on forged and fictitious documents---Validity---To let one or two fabricated application slip through the net was understandable but not such a high number as thirteen---Statement under S. 161, Cr.P.C. of former verification and recovery officer of the Bank belied claim of petitioner that he had no knowledge about false verifications and in fact indicated that he was fully aware of all bogus and fictitious applications which he forwarded to Head Office and recommended for approval---Alleged cardiac problem of petitioner was not one which could not be adequately treated whist in jail by prison authorities---Sufficient material was available on record to show that there were reasonable grounds to connect him with the offence---Bail was refused in circumstances.

Mohammed Nadeem Anwar v. NAB PLD 2008 SC 645; Air Marshal (Retd.) Waqar Azim v. State 2002 YLR 1811; Raqias v. The State 2004 PCr.LJ 186; Sardar Amin Farooqui v. Chairman NAB 2014 PCr.LJ 186; Zubair v. The State 2008 MLD 1400; Mst. Naseer Begum v. Sain 1972 SCMR 584; Malik Khuda Bakhsh v. The State 1995 SCMR 1621 and Azizullah Memon v. State PLD 2013 SC 594 ref.

Ameer Raza Naqvi for Petitioners (in C.P. No.D-1882 of 2016).

Muslim Shamim for Petitioners (in C.P. No.D-1592 of 2016).

Abid Akram for Petitioners (in C.P. No.D-1663 of 2016).

S. M. Iqbal for Petitioners (in C.P. No.D-1907 of 2016).

Noor Muhammad Dayo, DPG NAB and Muhammad Aslam Bhutta, Special Prosecutor NAB for Respondents.

2017 P Cr. L J 434

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD ARSALAN AHMED---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.1011 of 2016, decided on 5th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 34---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 6 & 15---Providing gas from direct connection through rubber pipe, theft of gas---Bail, grant of---Further inquiry---Violation of prescribed procedure---Effect---Offence under S. 15 of the Gas (Theft Control and Recovery) Act, 2016 was non-cognizable and proper course for complainant was to file direct complaint---Lodging of FIR was violation of S. 6 of the said Act---Case did not fall under prohibitory clause of S. 497, Cr.P.C.---Case of accused required further inquiry---Accused was allowed bail in circumstances.

2005 PCr.LJ 89; PLD 2014 Lah. 567; 2012 PCr.LJ 858; 1994 PCr.LJ 740 and 2016 MLD 230 ref.

Abdul Kareem Qureshi for Applicant.

Malik Sadaqat Khan, SPP/SSGC.

ASI/IO Abid Shah, PS SSGC.

2017 P Cr. L J 501

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Rasheed Ahmed Soomro, JJ

HUSSAIN BUX alias KABACHO CHANNA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-140 of 2011, decided on 2nd August, 2016.

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

----S. 9(c)---Seizure of narcotic---Appreciation of evidence---Benefit of doubt---Accused was allegedly found holding one plastic shopper in his hand, containing charas weighing 1050 grams at the time of raid---Despite the incident having occurred in a busy road where many private persons were available, Investigating Officer did not try to arrange any witness of the locality, who might have seen the accused in any manner linked with the said packet of narcotics---Evidence of police officials was as good as others, but in cases, where public persons were available at the site, and prosecution failed to join them as witnesses evidence of police officials lost its sanctity and evidentiary value---Mashirnama of the arrest and recovery bore over-writing in respect of weight of the recovered charas, which created doubt regarding authenticity of mashirnama---Prosecution witnesses were not on same line with each other on material points, which created doubt regarding authenticity of the prosecution evidence---Accused was acquitted on the basis of benefit of doubt in circumstances.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Seizure of narcotic---Chemical analysis of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution alleged that 1050 grams charas was recovered from the possession of accused---Delay of about seven days in sending the samples of narcotics to Chemical Examiner for analysis was not explained by the prosecution---Whether alleged narcotics was in safe custody during the intervening period had also not been explained by prosecution---Exercise of sending sample for testing was required to be completed within seventy-two hours of the recovery---Inordinate delay in sending samples was fatal to the case of prosecution---Accused was acquitted in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Many circumstances creating doubt were not necessarily required---Single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused was sufficient---Accused would be entitled to the benefit, not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

2005 YLR 2448; 2011 SCMR 820; 2012 MLD 1763; 2014 YLR 2050 and 2014 PCr.LJ 1358 ref.

Riaz Hussain Khoso for Appellant.

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

2017 P Cr. L J 509

[Sindh]

Before Naimatullah Phulphoto and Ghulam Qadir Leghari, JJ

AHSAN BANGASH alias JUNAID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.107 and Confirmation Reference No.07 of 2014, decided on 13th May, 2016.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 49---Qatl-i-amd---Appreciation of evidence--- Sentence, reduction in---Dying declaration---Scope---Accused was charged for causing death of his wife by setting her on fire---Trial Court relied upon dying declaration of deceased and testimony of minor daughter of accused and sentenced him to death--- Validity---No material irregularity was noticed in recording dying declaration of deceased by investigating officer in presence of prosecution witnesses when doctor found her fit for recording her statement---Dying declaration made by deceased was voluntary without any probability of prompting as to cause of her death and the same was recorded in writing by investigating officer who had no enmity with accused---High Court declined to discard dying declaration as made by deceased duly supported and corroborated by evidence of prosecution witnesses and the doctor---Daughter of accused had witnessed the incident and stated that her father quarrelled with her mother and sprinkled petrol on her mother who was standing near stove and fire caught her mother and such evidence was straightforward and trustworthy---Accused immediately after the incident repented and realized wrong act and tried to extinguish the fire and in the result he sustained burn wounds--- Actual and immediate cause of occurrence was not clarified by complainant during trial--- High Court converted sentence of death into imprisonment for life as such were mitigating circumstances--- Appeal was allowed accordingly.

Mst. Zahida Bibi v. The State PLD 2006 SC 263; Ulfat Hussain v. The State 2010 SCMR 247; Ali Bux and others v. The State 1985 MLD 697; Niaz-ud-Din and another v. The State 2011 SCMR 725 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

Abbas Hussain and another v. The State 1992 SCMR 320 rel.

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

----Art. 3---Testimony of child---Principle---If child gives statement which indicates that such witness understands questions and has given answers intelligently and rationally, the same cannot be ignored due to tender age of witness.

Mudassar Ali Shah v. The State 2011 MLD 873 rel.

(c) Criminal trial---

----Incriminating articles---Tampering with---When seals were intact and articles were not tampered or substituted and question of manipulation and tampering with the sample at appellate stage was without substance, which was not agitated at the time of trial.

Munir Uddin for Appellant.

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

Ahtesham Ullah for the Complainant.

2017 P Cr. L J 535

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

MUHAMMAD MOIN---Appellant

Versus

HAJI PATHAN and 7 others---Respondents

Cr. Acq. Appeals Nos.453 of 2004 and 33 of 2005, decided on 26th January, 2016.

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

----S. 417(2-A)---Appeal against acquittal---Appraisal of evidence---Scope---Marked difference between appraisal of evidence in appeal against conviction, and in appeal against acquittal---Appraisal of evidence in case of appeal against conviction was to be done strictly; and in appeal against acquittal, same rigid method of appraisal, was not to be applied, as there was already findings of acquittal given by the Trial Court after proper analysis/appreciation of evidence on record---In acquittal appeal, interference was made by High Court only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice---High Court, in appeal against acquittal, would not in principle, ordinarily interfere; and instead would give due weight to the findings of the court acquitting accused---High Court, would not interfere with acquittal, merely because on re-appraisement of evidence, it came to different conclusion than that of court acquitting accused---Ordinarily, scope of appeal against acquittal of accused was considerably narrow and limited---Criterion laid down for appeal against acquittal, was entirely different than the criterion of hearing of appeal against conviction.

Muhammad Usman and 2 others v. The State 1992 SCMR 489 rel.

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

----Ss. 395, 365-A & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Dacoity, kidnapping for ransom, common intention---Appeal against acquittal---Reappraisal of evidence---Trial Court, had elaboratory discussed each and every point involved in the case, and had assigned sound and cogent reasons for its findings---Prosecution had not been able to prove its case against accused persons---Inordinate delay of five days in lodging the FIR, had not been plausibly explained---Eye-witnesses of the alleged incident, were interested witnesses; and material discrepancies and contradictions were found in their evidence---No independent witness, was associated as witness in the case, although incident took place only 100/150 paces away from the main gate of Port Qasim---Two accused persons, at the time of alleged offence of snatching of two tankers, were not present at the spot, nor they were available at the place of confinement of the drivers and cleaners of the tankers---Glaring contradictions existed in the statements of the prosecution witnesses---Mandatory provisions of S.103, Cr.P.C., had been violated in the case---Abductees themselves were made mashirs of recovery---Interested witnesses could not be relied upon to prove recovery---Accused, though had also been involved under S. 365-A, P.P.C., which related to an offence of abduction for ransom, but none of the prosecution witnesses deposed that any demand for ransom passed on to the complainant and the owners/management of the company---Trial Court, had rightly held that S. 365-A, P.P.C., was not applicable to the case---Many circumstances existed in the case which created doubt in the prosecution case, benefit of the same was to be extended to accused as a matter of right---Accused, could not be deprived benefit of doubt merely, because there was only one circumstance which created doubt in the prosecution story---Court, had rightly acquitted accused persons by extending them the benefit of doubt---Appeal was dismissed.

1987 SCMR 117; PLD 1988 Kar. 409; Rahat Ali v. The State 2001 PCr.LJ 98; Irshad Ali alias Ishoo and 2 others v. The State PLD 2006 Kar. 178 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Syed Maroof Ali for Appellant (in Cr. Acq. Appeal No.453 of 2004).

Mohammad Iqbal Awan, A.P.G. for Appellant (in Cr. Acq. Appeal No.33 of 2005).

Mohammad Farooque for Respondents.

2017 P Cr. L J 549

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Khadim Hussain M. Shaikh, JJ

DILBER @ DILAIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE KOTRI and 18 others---Respondents

C.P. No.D-864 of 2015, decided on 26th February, 2016.

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

----Ss. 22-A & 22-B---Direction issued by Ex-Officio Justice of Peace to police for protection of harvest of crops relating to dispute of civil nature---Validity---Powers and duties of Ex-Officio Justice of Peace---Scope---Matter before the Ex-Officio Justice of Peace involved dispute between the private parties over the landed property, and the civil court had been approached by the respondent's father in the civil suit, which had already been decreed---Ex-Officio Justice of Peace was not to enter into arena of civil disputes between the parties over the landed property which involved intricate questions of fact relating to title and possession---Powers and duties of the Ex-Officio Justice of Peace in terms of Ss. 22-A & 22-B, Cr.P.C. were limited within the scope of the said provisions---Ex-Officio Justice of Peace, in the present case, had exercised the powers which were not vested in him and passed the impugned order without jurisdiction---Impugned order was, therefore, of no legal effect and was void ab initio---Impugned order was set aside---Constitutional petition was allowed in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab) Lahore and others PLD 2005 Lah. 470; Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance PLD 2005 SC 842 rel.

(b) Jurisdiction---

----Jurisdiction of courts---Principles---Every court is under a duty to first determine its jurisdiction and then to proceed ahead, as any order passed without jurisdiction would be void ab initio and nullity in the eye of law.

Muhammad Ramzan and others v. Member (Rev.)/CSS and others 1997 SCMR 1635; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance PLD 2005 SC 842 rel.

Kashif Hussain Agha for Petitioner.

Ashfaq Nabi Kazi, Assistant A.G. for the Respondents.

2017 P Cr. L J 561

[Sindh]

Before Muhammad Humayon Khan, J

SHERAZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.754 of 2016, decided on 2nd August, 2016.

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

----S. 497---Bail---Where an accused was charged under two different Statutes or laws, he could only be tried for offence under the law, which provided lesser sentence, provided that offences were alike or similar in nature.

Mir Jan v. The State 2003 PCr.LJ 1903 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14---Foreigners Order, 1951, Rr. 3 & 4---Using as genuine a forged document and refusing to furnish information, which a person ought to disclose or furnish, national status of accused---Bail, grant of---Further inquiry---Documentary evidence--- Accused alleged the documents to be genuine---Prosecution took plea that documents were forged---Cases entirely based upon documentary evidence---Genuineness and falsehood of such documentary evidence could be determined by the Trial Court after trial---Case of accused was of further inquiry---Bail was granted in circumstances.

Muhammad Yousaf v. The State 1995 PCr.LJ 1348 and Abdul Qayoom v. The State 2010 MLD 1251 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14---Foreigners Order, 1951, Rr. 3 & 4---Using a forged document as genuine and refusing to furnish information, which a person ought to disclose or furnish, national status of accused---Bail, grant of---Further inquiry---Prosecution sought verification of certain documents which were awaiting the verification---Case of accused, in circumstances, fell within the purview of further inquiry---Punishment for most of the offences with which accused was charged not covering by prohibitory clause of S.497, Cr.P.C.---Accused was entitled to the concession of bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14---Foreigners Order, 1951, Rr. 3 & 4---Using as genuine a forged document and refusing to furnish information, which a person ought to disclose or furnish, national status of accused---Bail, grant of---Principles---Where the case entirely depended upon documentary evidence which seemed to be in possession of the prosecution, the question of tampering with the evidence would not arise and matter was that of further inquiry---Bail was granted.

Saeed Ahmed v. The State 1996 SCMR 1132 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14---Foreigners Order, 1951, Rr. 3 & 4---Using as genuine a forged document and refusing to furnish information, which a person ought to disclose or furnish, national status of accused---Bail, grant of---Principles---Where a person was accused of having committed a crime which he could not commit without either involvement of duping of State functionary unless such role of the state functionary was also on record and if circumstances so warranted, no action had been taken against the State functionary, it was unfair to prosecute helpless citizens only---Bail was to be granted.

Abdul Qayoom v. The State 2010 MLD 1251 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2), 13 & 14---Foreigners Order, 1951, Rr. 3 & 4---Using as genuine a forged document and refusing to furnish information, which a person ought to disclose or furnish, national status of accused---Bail, grant of---Principles---When question to the national status of the accused required inquiry particularly in the circumstances, when accused produced series of documents to establish his nationality---Accused was entitled to be enlarged on bail.

Muhammad Rais Khan for Applicant.

Muhammad Javed, K.K., Standing Counsel along with S.I. Amir Akbar and Inspector Legal, FIA Mirza Tanveer Ahmed for the State.

2017 P Cr. L J 578

[Sindh]

Before Zafar Ahmed Rajput and Muhammad Iqbal Mahar, JJ

ALI DINO and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-56 of 2014, decided on 22nd September, 2016.

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

----Ss. 9, 17(3), (4) & 24---Penal Code (XLV of 1860), S. 396---Criminal Procedure Code (V of 1898), S. 410---Jurisdiction of Federal Shariat Court in offences committed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and any other law---Scope---Accused in the present case, were charged and tried under Hudood Law but were convicted under S. 396, P.P.C.---Accused filed appeal before High Court and contended that since they were convicted for offence punishable under S. 396, P.P.C., therefore, appeal could be heard by High Court---Validity---Appeal filed by accused before High Court was not maintainable---If the trial was conducted for an offence under Ss. 9 & 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentence of imprisonment for a term exceeding two years was awarded, the appeal shall lie to the Federal Shariat Court, irrespective of the fact that ultimately the court convicted the offenders for offence under S. 396, P.P.C.---Appeal was returned to accused for its submission before Federal Shariat Court.

Shabbir Ahmed v. The State 2012 PCr.LJ 1491; Nizamuddin v. The State 1999 PCr.LJ 1761; Muhammad Tariq v. The State 2009 PCr.LJ 747 and Allahdad alias Dadi v. The State 2007 PCr.LJ 295 ref.

Juman and another v. The State PLD 2016 Sindh 191; Ghulam Muhammad v. The State 2013 PCr.LJ 105 and Shabir Ahmed v. The State 2011 SCMR 1142 rel.

Athar Abbas Solangi for Appellants.

Khadim Hussain Khookaro, DPG for the State.

2017 P Cr. L J 605

[Sindh]

Before Ahmed Ali M. Sheikh and Muhammad Saleem Jessar, JJ

PIRZADA alias PEER---Appellant

Versus

The STATE---Respondent

Criminal Special Anti-Terrorism Appeal No. 191 of 2015, decided on 27th October, 2016.

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

----Ss. 324, 353, 392 & 34--- Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, robbery, common intention and act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation against the accused persons was that they committed robbery during which injuries were caused and police arrived resulting into encounter---Star witness of the incident was the person who was stopped by the accused and attempted to be robbed---Complainant, his driver and guard were star witnesses as they were stopped by the accused for the purpose of robbery---Said witnesses were never produced by the prosecution during investigation process nor were examined during the trial---Prosecution had not placed any legal justification for not bringing the said witnesses into witness box--- Attending circumstances had created doubt about the veracity of the prosecution case, benefit of which resolved in favour of accused--- Appeal was allowed and conviction and sentences recorded by the Trial Court against accused were set aside in circumstances.

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

----Ss.324, 353, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, robbery, common intention and terrorism---Appreciation of evidence---Withholding of best piece of evidence---Effect---Star witnesses were never produced by the prosecution---If a best piece of evidence available with a party, was withheld, it would be presumed that if the evidence would have been produced the same would not have supported the party---Adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984, could be drawn---Appeal was allowed and conviction and sentences recorded by the Trial Court against accused were set-aside in circumstances.

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

----Ss.324, 353, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, robbery, common intention and terrorism---Appreciation of evidence---Benefit of doubt---Statement of injured witness---Credibility---Prosecution produced witness as eye-witness who received injuries during the occurrence---Validity---Mere injuries on a prosecution witness, at the most, could only be indicative of his presence at the spot but was not affirmative proof of his credibility and truthfulness---Said witness had not claimed to have seen the culprits or that culprits were already known to them---Said witness had not participated in the identification parade---Injured witness appeared before the Medical Officer after the lapse of more than six months from the time of alleged receipt of injuries and had claimed to have sustained injuries on the day of occurrence---Prosecution was under obligation to have produced some material to substantiate that injured witness did receive injuries on the day of occurrence, which it failed to do---Evidence of said witness was not even confidence inspiring but had increased the dent in the prosecution case----Appeal was allowed and conviction and sentences recorded by the Trial Court against accused were set aside in circumstances.

2007 SCMR 670 rel.

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

----Ss.324, 353, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, robbery, common intention and terrorism---Appreciation of evidence---Benefit of doubt---Statement of police official---Reliance---Private witnesses though available with prosecution were not produced or did not support the version of prosecution---Evidence of police official alone was normally not safe to sustain conviction---Happening of robbery, encounter with culprits and receipt of injuries did not absolve the prosecution from its mandatory obligation, which required the prosecution not only to prove happening of an offence but happening thereof by the one, sent as accused---Prosecution failed to establish such factors---Appeal was allowed and conviction and sentences recorded by the Trial Court against accused were set-aside in circumstances.

(e) Criminal trial---

----Appreciation of evidence---Principle---Benefit of doubt---Scope---Heinous or gruesome nature of crime not to detract the court of law in any manner from the due course to judge and make the appraisal of evidence in a proper laid down manner and to extend the benefit of reasonable doubt to an accused person.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss.324, 353, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, robbery, common intention and terrorism---Appreciation of evidence---Burden of proof---Benefit of doubt---Burden on prosecution to prove its case---Prosecution failed to establish its case through direct evidence, which was sufficient to extend benefit of doubt as accused was not required to prove the case of prosecution as false but was to show reasonable doubt in the case---Appeal was allowed and conviction and sentences recorded by the Trial Court against accused were set aside in circumstances.

Abdul Majeed v. The State 2011 SCMR 941 rel.

(g) Criminal trial---

----Benefit of doubt---Not necessary that there should be many circumstances, creating doubt but a single reasonable doubt was sufficient for acquittal of accused.

2009 SCMR 230 rel.

Ajab Khan Khattak for Appellant.

Muhammad Iqbal Awan, Assistant Prosecutor-General Sindh for the State.

2017 P Cr. L J 631

[Sindh]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

Dr. ASIM HUSSAIN and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 993, 1076, 1120 and 1144 of 2016, decided on 11th November, 2016.

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

----S. 164---Statement of witness---Scope---Statement of witness under S. 164, Cr.P.C. cannot be considered substantive piece of evidence but it can be used to contradict the person in court, who made such statement---Main object of law is to ensure voluntariness, exactitude and truthfulness which can only be verified by court at trial from other corroborative evidences.

(b) Bail---

----Deeper appreciation of evidence cannot be looked into at bail stage.

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

----S. 497(2)---Bail---Further inquiry---Scope---Further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of material on record is to be considered for reaching just conclusion---Case of further inquiry pre-supposes tentative assessment which may create doubt with respect to involvement of accused in crime.

(d) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Due process of law---Delay in trial---Effect---Object of trial is to make accused to face trial not to punish under trial prisoner---Basic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind the bars---Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable and inordinate delay---Inordinate delay in imparting justice is likely to cause erosion of public confidence in judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries.

Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui's case 2014 PCr.LJ 186; 2015 YLR 216; 2015 YLR 108 and PLD 2016 Sindh 41 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 201, 202, 216A & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 21I & 21J---Disappearing of evidence, concealment of property, terrorism, abetting and harboring---Bail, grant of---Opinion of Investigating Officer---Conflict in investigation reports---Effect---Accused persons sought post arrest bail as the Investigating Officer had filed Final Investigation Report in "A" class due to lack of sufficient evidence---Validity---Even at bail stage, court could not lightly ignore opinion of Investigating Officer but it needed to be considered in collocation---Investigating agency was an imperative instrument of State and if they were not willing to accentuate that accused persons were guilty, unless there were some strong circumstances otherwise so as to come to another judicious and sagacious conclusion, the Court cannot get rid of or brush aside such conclusion for the purpose of bail---Conflicting findings as to the guilt or innocence of accused by distinct police officer had to be resolved in favour of accused---Bail could not be withheld as punishment, every person was presumed to be innocent unless found guilty by a competent court and was entitled to a fair trial which included a trial without inordinate delay---Basic philosophy of criminal jurisprudence was that prosecution had to prove its case beyond reasonable doubt and such principle applied to all stages including pre-trial and even at the time of deciding whether accused was entitled to bail or not---Bail was allowed in circumstances.

Zaigham Ashraf v. The State and others 2016 SCMR 18; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Alam Zeb and another v. The State and others PLD 2014 SC 760; Nisar Ahmed v. The State and others 2014 SCMR 27; Palvinder Kaur v. The State of Punjab AIR 1952 SC 354; K.R. Easwaramurthi Goundan v. Emperor AIR (31) 1944 PC 54; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Zakhim Khan Masood v. The State 1998 SCMR 1065 and Hakim Ali Zardari's case PLD 1998 SC 1 ref.

(f) Bail---

----Concept---No innocent person's liberty should be truncated until and unless proved otherwise.

Sardar Lateef Khosa, Anwar Mansoor Khan, Qadir Khan Mandokhail and Umaima Mansoor for Applicants (in Cr. B.A. No.993 of 2016).

Muhammad Farooq for Applicant (in Cr. B.A. No.1076 of 2016).

M. Ilyas Khan, Muhammad Farooq, Hassan Sabir and Ms. Soofia Saeed Shah for Applicant (in Cr. B.A. No. 1120 of 2016).

Shaukat Hayat for Applicants (in Cr. B.A. No. 1144 of 2016).

Sajid Mehboob Shaikh and Rana Khalid Hussain for the Complainant.

Ayaz Ahmed Tunio, Special Public Prosecutor.

D.S.P. Altaf Hussain, I.O. of the case.

Major Asghar Hamdani, DAJAG, Pakistan Rangers.

2017 P Cr. L J 691

[Sindh]

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

Mirza SARDAR BAIG---Petitioner

Versus

M. AKMAL PAUL and 6 others---Respondents

Constitutional Petition No.D-2491 of 2015, decided on 12th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 167---Remand---Procedure---Physical remand, application for---Locus standi---Magistrate, declining application filed under S. 167, Cr.P.C. by Investigation Officer, remanded the accused to jail and directed the applicant to submit his report under S. 173, Cr.P.C. after conducting investigation---Revisional court upheld said order---Remand to the police could not be granted on the ground that presence of accused was necessary to furnish the investigation or to get forcible statement from the accused, nor could remand be granted on the whims and wishes of the complainant---Section 167, Cr.P.C. provided procedure for the Investigation Officer, where investigation was not complete within 24 hours---Present petition had been filed by the complainant, who was a private person, and the Investigation Officer had not challenged the impugned order---No mala fide and ulterior motive had been alleged against the Investigation Officer---Only the Investigation Officer could furnish application for grant of remand and assail the orders passed on such application before appropriate forum---Petitioner, in his private capacity, had no nexus with the matter and had no locus standi to file such application---Dispute between the parties appeared to be one between landlord and tenant---No perversity, illegality and incorrectness was found in the impugned order--- Constitutional petition was dismissed in circumstances.

Shahnawaz for Petitioner.

2017 P Cr. L J 742

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Muhammad Humayon Khan, JJ

JALEEL AHMED PITAFI and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 57, 125, 126, 127, 128, 129, 130, 131 and 132 of 2016, decided on 21st September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 224, 225, 148 & 149---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, resistance or obstruction to lawful apprehension, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Police, upon receiving spy information regarding availability of accused wanted in a murder case and an attempt to murder case, reached at the place of occurrence where an encounter took place in which no one was injured and all the accused were arrested on the spot---Investigation was completed---No apprehension of tampering with evidence existed---Charge had not been framed since one year---None had received injury or scratch even no damage was caused to police mobile---False implication of accused could not be ruled out---Another FIR regarding possession of firearms without licence was the result of offshoot of main case---Case was of further inquiry---Bail was allowed accordingly.

Rab Nawaz v. The State 1990 SCMR 1085 and Syed Amanullah Shah v. The State and another PLD 1996 SC 241 rel.

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

----S. 497--- Bail, after arrest---Quantum of sentence, consideration of---Scope---Court, while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of case.

J.K. Jarwar for Applicant (in Criminal Bail Application No. 57 of 2016).

Sher Muhammad Shar for Applicants (in all Criminal Bail Applications except Criminal Bail Application No.57 of 2016).

Saleem Akhter Buriro, Additional P.-G. for the State.

2017 P Cr. L J 770

[Sindh]

Before Irfan Saadat Khan and Mohammad Karim Khan Agha, JJ

MASOOD AHMED and another---Petitioners

Versus

STATE through Director-General, NAB---Respondent

C.Ps. Nos. 2343 and 1717 of 2015, decided on 19th September, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 477-A, 34 & 190---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by banker, cheating and dishonestly inducing delivery of property, forgery, falsification of accounts, threat of injury to induce person to refrain from applying for protection to public servant, misconduct by public servant---Bail, grant of---Complainant (Assistant Vice President of a Bank) alleged that petitioners-accused along with three other co-accused were found to have been involved in embezzling Rs. 261,411,407 from Bank while dealing with receipt of motor vehicle tax which was to be forwarded to taxation authorities---No particular recovery had been made from accused persons---Accused had already spent one year in jail in one case and in another case their post-arrest bail was upheld by Supreme Court prior to the transfer of case to NAB---NAB on transfer did not add any additional evidence against accused---Accused were regularly attending the court---Trial had not yet started, and accused would remain confined in jail for considerable period of time till the trial started---Pre-arrest bail was confirmed accordingly.

Muhammad Rehman Ghous and Hussain Bux Baloch for Petitioners.

Noor Muhammad Dayo, DPG NAB and Muhammad Aslam, Special Prosecutor NAB along with Sarvech Shaikh, IO NAB for Respondent.

2017 P Cr. L J 812

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

IMDAD HUSSAIN---Applicant

Versus

ZAHOOR AHMED PHUL, PS HINGORJA and 2 others---Respondents

Criminal Miscellaneous Application No. S-254 of 2015, decided on 3rd February, 2016.

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

----Ss. 406, 409 & 420---Sindh Foodstuffs (Control) Act (XX of 1958), S. 3---Criminal Procedure Code (V of 1898), S.561-A---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property---Appreciation of evidence---Police (complainant) had alleged that accused, a public servant, issued bardana (bags in which provisions were kept) to unknown trader, thus committed criminal breach of trust---Investigating Officer submitted report in 'C'-Class which was declined by Trial Court---Accused filed application under S.561-A, Cr.P.C.---Validity---No complaint from District Food Officer or any other competent authority against accused was on record---Nothing was mentioned in the record regarding raid at food centre and confiscation of wheat bags along with truck by Police---No misappropriation of wheat stock stored and no shortfall of stock of bardana or issuance of bardana to any unknown contractor was proved from the relevant stock registers---Search and seizure of truck and wheat bags as well as lodgment of FIR, in circumstances, were illegal--- Summary report submitted by Investigating Officer under 'C'-Class was an illegality and material infirmity which called for interference by High Court---Application under S. 561-A, Cr.P.C. was allowed accordingly.

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

----S. 173---Power of Magistrate to agree/disagree with summary police report---Scope---Magistrate was competent to accord to or discard summary report submitted by Investigating Officer under S.173, Cr.P.C.---While declining such report Magistrate must apply prudent mind and scan entire material collected by Investigating Officer---Magistrate while declining opinion of Investigating Officer had to keep in mind lengthy trial, mental torment and financial loss of an innocent person.

Nisar Ahmed Bhambhro for Applicant.

Abdul Rehman Kolachi, APG along with I.O. Ali Ghulab Bhambhro for Respondents.

2017 P Cr. L J 836

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Muhammad Humayon Khan, JJ

GHOUS BUX---Appellant

Versus

SALEEM and 3 others---Respondents

Cr. Acquittal Appeal No. 34 of 1999, decided on 2nd September, 2016.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Principles---Complainant had alleged that accused gave call to deceased, who went out of house with accused, but did not return home and his dead body was found lying in wheat crop---Occurrence was an un-witnessed night time incident---Last seen evidence had been disbelieved by Trial Court for sound reasons---Judicial confession attributed to accused was retracted by accused before Trial Court---Murder had remained un-witnessed thus medical evidence was of no help to the case of prosecution---Case of prosecution against accused was primarily based upon suspicion---No misreading or non-reading of evidence had been pointed out on part of Trial Court---Appeal against acquittal was dismissed.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo 1993 SCMR 585 rel.

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

----Ss. 164 & 364---Confession of accused how to be recorded---Procedure---Questions to be asked to accused before recording confession were: Firstly, "how long had you been with police? secondly, had any pressure been brought to bear upon you to make confession? Thirdly, had you been threatened to make confession? Fourthly, had any inducement been given to you? Fifthly, had you been told that you would be made an approver? Sixthly, why were you making this confession?"--- Handcuff should be removed; police be sent out of court room and accused be given time to ponder; accused must be told that he was not bound to make confession and if he made it, same would be used against him and whether the accused made confession or not would not be sent back to police custody.

Liaquat Bahadur and others v. The State PLD 1987 FSC 43 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen witness---Mere fact that accused was last seen with deceased was not enough to sustain conviction for murder---No link in the chain of circumstances had to be broken and thus acceptable on any other hypothesis.

1972 SCMR 15 rel.

Muhammad Iqbal Memon for Appellant.

Nusrat Hussain Memon for Respondents Nos. 1 to 3.

Saleem Akhter, Additional P.-G. for the State.

2017 P Cr. L J 920

[Sindh]

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

Miss AYYAN ALI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No. D-3708 of 2016, decided on 19th January, 2017.

Per Naimatullah Phulpoto, J on difference of opinion between Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ. [Majority view]

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

----Ss. 2 & 3---Constitution of Pakistan, Art. 199---Power to prohibit exit from Pakistan--- Exit Control List ("ECL")--- Constitutional petition---Maintainability---Territorial jurisdiction of High Court under Art. 199 of the Constitution in matters relating to orders/memorandums issued by Federal Government in exercise of powers under S. 2 of the Exit from Pakistan (Control) Ordinance, 1981---Scope---Petitioner impugned placement of petitioner's name on the Exit Control List (ECL) via Memorandum issued by the Federal Ministry of Interior---Question before the Sindh High Court was whether the High Court had territorial jurisdiction over the matter, since the impugned memorandum was issued by the Federal Ministry of Interior in pursuance of recommendations of the Government of Punjab based on orders of the Lahore High Court---Validity---Record reflected that there were two earlier Constitutional petitions impugning memorandums whereby petitioner's name was placed on the ECL and both were struck down by the High Court and it was held that the Sindh High Court had territorial jurisdiction to hear the matter---Mere fact that Federal Ministry of Interior had issued the impugned memorandum in pursuance of orders of the Lahore High Court and on recommendations of the Government of Punjab was not sufficient to hold that Sindh High Court had no jurisdiction to entertain and decide the Constitutional petition---Order of the Lahore High Court had not clearly directed the Federal Ministry of Interior to place name of the petitioner on the ECL---Per Art. 199 of the Constitution, High Court could declare any act done or proceeding taken within the territorial jurisdiction of the High Court, by a person performing functions in connection with the affairs of the Federation, a Province or Local Authority, to have been done or taken without lawful authority and to be of no legal effect---Stringent view, if taken on the question of placing name of a person on the Exit Control List, would mean that only the High Court at Islamabad would have jurisdiction, and no other High Court could take up any issue against the Federation on the plea that the Federation was located at Islamabad---High Court observed that it was not the case, that an order made under the Exit from Pakistan (Control) Ordinance, 1981 did not apply to the Province of Sindh or that if the petitioner wanted to exit from the territorial jurisdiction of the High Court of Sindh, the petitioner would not be stopped---High Court further observed that the petitioner resided within the territory of Sindh and therefore the cause of action accrued to the petitioner within such territory and that the petitioner had the right to choose the forum of her convenience where petitioner's rights had been affected and mere pendency of a criminal case outside the province of Sindh could not be valid justification for prohibiting petitioner's movements--- Constitutional petition, was therefore maintainable.

Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 1997 Lah. 617; Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Kar. 252; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Nazir Adenwala v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2013 Sindh 186; Farrukh Niaz v. Federal Government of Pakistan PLD 2006 Kar. 530; Mirza Muhammad Iqbal Baig v. Federation of Pakistan and others 2006 YLR 2797; Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186; Jehangir Mehmood Cheema v. Government of Pakistan, Ministry of Interior through Secretary and 2 others PLD 2015 Lah. 301; Gen. (Retd.) Parvez Musharaf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman, Central Secretariat, Islamabad and 3 others PLD 1976 Pesh. 66; Trading Corporation of Pakistan (Pvt.) Ltd. v. Pakistan Agro Forestry Corporation (Pvt.) Ltd. and another 2000 SCMR 1703; Smt. Savitramma v. Cicil Naronha and another 1989 MLD 1133 and Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. and another 1999 MLD 3173 ref.

LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498; Gen. (Retd.) Parvez Musharaf v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389 and PLD 2016 SC 570 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioner, in Constitutional petition, under Art. 199 of the Constitution, could not be deprived of his/her Fundamental Rights on technicalities.

Per Mohammed Karim Khan Agha, J; Naimatullah Phulpoto, J agreeing. [Majority view]

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

----Ss. 2 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Power to prohibit exit from Pakistan---Exit Control List ("ECL")---Territorial jurisdiction of High Court under Art.199 of the Constitution in matters relating to orders/memorandums issued by Federal Government in exercise of powers under S. 2 of the Exit from Pakistan (Control) Ordinance, 1981---"Take Effect" test to determine territorial jurisdiction of High Court---Scope---Petitioner impugned placement of petitioner's name on the Exit Control List (ECL) via Memorandum issued by the Federal Ministry of Interior---Contention of the Federal Government, inter alia, was that the name of the petitioner had been placed on the ECL in pursuance of an order of the Lahore High Court and recommendations of the Government of Punjab, and therefore High Court of Sindh had no territorial jurisdiction in the matter---Validity---Memorandum placing the petitioner's name on the ECL had been issued by the Federal Ministry of the Interior and was a federal issue, and in the present case the "Take Effect" test would apply---Impugned memorandum would "take effect" or "have effect" at the Airport at the city of Karachi, and therefore the Constitutional petition was maintainable in terms of territorial jurisdiction of the Sindh High Court and could be taken up by the Sindh High Court notwithstanding the fact that the Lahore High Court and Islamabad High Court may also have concurrent jurisdiction---Constitutional petition was held to be maintainable, in circumstances.

Suo Motu Case No.4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan regarding non-compliance of this Court's Order dated 16.12.2009) PLD 2012 SC 553; Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774; Adnan A. Khawaja v. The State PLD 2012 SC 866; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 and Suo Motu Case 11/2011 PLD 2014 SC 389 ref.

General (Retd.) Pervaiz Musharraf v. Pakistan through Secretary of Interior PLD 2014 Sindh 389; Federation of Pakistan through Ministry of Interior v. General (Retd.) Pervez Musharraf Civil Appeal No. 870 of 2014 dated 16.3.2016; Inam Akhter v. Federation of Pakistan W.P. No. 38431 of 2015 and National Accountability Bureau v. Inam Akbar Civil Petition No. 487 of 2016 dated 6-10-2016 rel.

(d) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability---Technicalities---Question before the High Court was whether Constitutional petition was maintainable when the same had not been signed by the petitioner but rather had been signed by an advocate instructed on behalf of said petitioner---Validity---Defect was a technicality and law preferred that a matter should not be defeated by technicalities but decided on merits---Chronology of events and history of the matter was to be kept in mind and High Court was required to do complete justice in its Constitutional jurisdiction where often the might of the State was pitted against an individual---Court was not supposed to close its eyes and ears to a matter as opposed to doing complete justice under its discretionary Constitutional jurisdiction.

Smt. Savitramma v. Cicil Naronha 1989 MLD 1133 distinguished.

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

----Ss. 2 & 3---Constitution of Pakistan, Arts. 4, 15 & 25---Power to prohibit exit from Pakistan---Exit Control List ("ECL")---Exercise of powers by Federal Government under S. 2 of the Exit from Pakistan (Control) Ordinance, 1981---Right of individuals to be dealt with in accordance with law---Equality of citizens---Nomination of a person in an FIR did not justify placing his/her name on the Exit Control List---Placing of names on the Exit Control List fell within the purview of Arts. 4 & 25 of the Constitution and in all such cases if the said Articles were not applied equally to all citizens regardless of their status, perception may rise in the minds of people that not all are equal before the law, which would erode the confidence of public in the administration of justice and rule of law.

National Accountability Bureau v. Inam Akbar Civil Petition No. 487 of 2016 rel.

Per Ahmed Ali M. Shaikh, J, Mohammed Karim Khan Agha, J disagreeing. [Minority view]

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

----Ss. 2 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Power to prohibit exit from Pakistan---Exit Control List ("ECL")---Territorial jurisdiction of High Court under Art. 199 of the Constitution in matters relating to orders/memorandums issued by Federal Government in exercise of powers under S.2 of the Exit from Pakistan (Control) Ordinance, 1981---Scope---Petitioner impugned placement of petitioner's name on the Exit Control List (ECL) via Memorandum issued by the Federal Ministry of Interior---Validity---While the High Court had previously, twice struck down Memorandums controlling the petitioner's exit from the country, however, in wake of the fact that the Federal Ministry of Interior had issued the impugned memorandum, based on an order of the Lahore High Court and on the recommendation of the Provincial Government of Punjab, Sindh High Court in the present case, had no territorial jurisdiction to entertain the Constitutional petition---Constitutional petition, being not maintainable, was dismissed, accordingly. [Minority view].

Sardar Latif Khan Khosa and Qadir Khan Mandokhel for Petitioner.

Salman Talibuddin, Additional Attorney General for Pakistan and Ms. Seemi Zaidi, Assistant Prosecutor-General Sindh for Respondents.

2017 P Cr. L J 1012

[Sindh]

Before Muhammad Humayon Khan, J

MUHAMMAD HANIF---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No. 1216 of 2016, decided on 14th October, 2016.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)--- Possession of narcotic substance--- Bail, refusal of---Prosecution story was that 4000 kilogram of charas was recovered from secret box of the oil tanker driven by accused---Accused being driver of the vehicle was supposed to be custodian of the same---Merely shrugging off the shoulders by the accused that he had no knowledge of what was there in the secret box of the vehicle, was a self-defeating argument---Accused was in exclusive possession of the oil tanker, therefore, he was reasonably connected with the presence of huge quantity of charas kept in secret cavities of the oil tanker---Offence punishable under Control of Narcotic Substances Act, 1997, was by its nature heinous and considered to be the offence against society at large---Offence fell in the ambit of prohibitory clause of S. 497(1), Cr.P.C.---Facts and circumstances established that accused failed to make out a case for grant of bail---Bail was refused in circumstances.

Socha Gul v. The State 2015 SCMR 1077 rel.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substance---Bail---Police witnesses---Credibility--­Private persons were asked to act as witnesses in the case but they refused due to fear of narcotic paddlers; police officials were therefore, associated as witnesses---Members of police force were competent witnesses in the eyes of law and could be credited with veracity unless they were demonstrated to be false witnesses having maliciously involved an innocent person in the commission of offence for ulterior motives.

Pervaiz Ahmed v. The State PLD 2008 Kar. 14 and Ghulab Din v. The State 2013 PCr.LJ 1160 ref.

Afzaal Ahmed v. The State 2003 SCMR 573 rel.

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

----S. 497---Bail---Principle---Observations made in bail granting order were tentative in nature---Trial Court was to decide the case purely on its merits.

Aijaz Farooq for Applicant.

Habib Ahmed, Special Prosecutor, ANF for the State.

2017 P Cr. L J 1067

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

ABDUL HAFEEZ and others---Applicants/Petitioners

Versus

DISTRICT CO-ORDINATION OFFICER, CHOTKI AT MIRPUR MATHELO and others---Respondents

Crl. Misc. Applications Nos. 589/2010, 587/2013, Crl. Revision No.7/2013, Crl. Misc. App. No. 783/2013, C.P. No. D-1338/2013, Crl. Misc. App. Nos. 137, 174, 631, 817, 826 of 2013, 269 of 2014 and Crl. Rev. No. 63 of 2014, decided on 2nd June, 2016.

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

----Ss. 200 & 561-A---Prevention of Corruption Act (II of 1947), Preamble---Sindh Enquiries and Anti-Corruption Rules, 1993, R. 11---Private/direct complaint---Material on record was not examined---Order passed by the Trial Court on the direct complaint received from private person, issuing direction to the Anti-Corruption Department to register FIR under Prevention of Corruption Act, 1947 were administrative in nature for having been passed without hearing the concerned parties---Such orders had been passed in violation of provisions of Prevention of Corruption Act, 1947---Constitutional petition was allowed and proceedings initiated by Trial Court were quashed by High Court.

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

----Ss. 200 & 561-A---Private/direct complaint---Procedure---Trial Court, in complaint cases, was required to examine the material through preliminary inquiry---Trial Court, in the present case, neither recorded statement of the complainant nor conducted preliminary inquiry---Cognizance was taken of the complaint in terms of S. 204, Cr.P.C.---Direction was issued for the registration of FIR---Trial Court, in circumstances, did not observe the legal procedure and passed order for the registration of FIR in violation of law---Constitutional petition was allowed and proceedings carried out by the Trial Court were quashed accordingly.

Syed Murad Ali Shah v. Government of Sindh and others PLD 2002 Kar. 464 rel.

Qurban Ali Malano, Zufliqar Ali Sangi, Shabbir Ali Bozdar, Bakhshan Khan Mahar, Achar Khan Gabole for Applicants/Petitioners.

2017 P Cr. L J 1083

[Sindh]

Before Syed Muhammad Farooq Shah, J

Syed MOHAMMAD ALI RAZA ZAIDI---Applicant

Versus

The STATE---Respondent

Cr. Misc. Application No. 261 of 2014, decided on 15th August, 2016.

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

----S. 193---Cognizance of offences by Court of Session---Summoning of accused---Principle---If incriminating evidence was available on record of case or material implicating accused was brought on record, accused could be summoned under S. 193, Cr.P.C.

Inayatullah and 4 others v. The State 1999 PCr.LJ 731 rel.

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

----Ss. 173 & 190---Cognizance of offence by Magistrate---Report of police officer---Effect---Magistrate was not bound by report submitted by police under S. 173, Cr.P.C.---Nothing in S. 190, Cr.P.C. prevented a Magistrate from taking cognizance of case under class "B" in spite of the police report.

Falak Sher and another v. The State PLD 1967 SC 425 rel.

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

----S. 249-A---Acquittal of accused at any stage of trial---Time for filing of application---Application under S.249-A, Cr.P.C. could be filed at any point of time after taking cognizance by Magistrate.

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

----S. 5(2)---Penal Code (XLV of 1860), Ss. 161, 343 & 34---Criminal Procedure Code (V of 1898), S. 561-A---Criminal Misconduct and illegal gratification received by public servant---Wrongful confinement for 3 or more days---Complainant alleged that he received a threatening call for release of his son on payment of illegal gratification of Rs.10,00,000/- with caution that in case of non-payment his son would be involved in false cases or killed---Complainant further alleged that he paid the demanded amount and requested for release of his son but accused-police officials involved his son in a false case---Investigation was conducted and cognizance was taken against all the accused persons except one (present applicant)---Name of accused (present applicant) was booked in receiving illegal gratification, on application of advocate for complainant---Accused (present applicant) moved application under S. 561-A, Cr.P.C. for quashment---Name of accused (present applicant) was present in complaint with specific role---Held, by taking cognizance against the accused (present applicant) Trial Court rightly found a prima facie case made out against him and other accused and claim of present applicant to quash the proceedings at the threshold and abort the trial seemed to be entirely unjustified---Application under S. 561-A was dismissed accordingly.

Muhammad Farooq for Applicant.

2017 P Cr. L J 1099

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Muhammad Iqbal Kalhoro, JJ

NISAR DEPAR---Appellant

Versus

The STATE---Respondent

Cr. Jail Appeal No. D-42 of 2011, decided on 22nd November, 2016.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Extenuating circumstance---Accused allegedly committed murder of deceased with Kalashnikov in the house of a doctor during marriage ceremony of his brother and sister---Motive was refusal of complainant to allow the accused to be a friend of his deceased son and complaining against him---Prosecution evidence was natural and trust-worthy---Presence of witnesses, being residents of same village and relatives of bride and bridegroom was also natural---Doctor in whose house alleged incident took place was not alleged by prosecution to be physically present at the time of incident; so non-citing him as witness would not affect the merits of case---Complainant's effort to keep the motive confined within two families was natural and it could not be read as his failure to prove the same---Site plan and medical evidence fully corroborated the prosecution evidence---Recovery of crime weapon had no relevance in the matter---Prosecution had failed to explain as to how while sitting on the chair the deceased sustained injury near his buttock from a bullet whose trajectory was almost vertical from down to upwards---Offence was not premeditated---Sentence of accused, in circumstances, was modified from S. 302(b) to 302(c), P.P.C.---Appeal was dismissed and accused was sentenced for the period he had already undergone under S. 302(c), P.P.C.

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

----S. 302(c)---Punishment for qatl-i-amd---Scope---Legislature had left it to the court to decide the matter of punishment on case to case basis.

Ali Muhammad v. Ali Muhammad and another PLD 1998 SC 274 rel.

Asif Ali Abdul Razzak Soomro for Appellant.

Habibullah G. Ghouri for the Complainant.

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

2017 P Cr. L J 1187

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

Dr. MUHAMMAD SHARIF---Petitioner

Versus

MILITARY ESTATES OFFICER and another---Respondents

C. P. No. D-1083 of 2016, decided on 14th March, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22---Justice of Peace---Powers of Justice of Peace in respect to documentation---Issuance of "Heirship Certificate" in respect of property---Scope---Office of Justice of Peace was created under S. 22 of the Cr.P.C. and Justice of Peace's powers in respect of documentation were mentioned in S. 22-A(5) of the Cr.P.C., and said law had not given powers to the Justice of Peace to issue an "heirship certificate"---Justice of Peace could issue residential certificate to a person residing in his local area or attest documents, but he had no power to issue an "heirship certificate".

Muhammad Anwer Tariq for Petitioner.

Sohail H. K. Rana for CBC along with Muhammad Sajjad Ahmed, MEO, Karachi Circle.

Muhammad Javaid K.K., Assistant Attorney-General.

2017 P Cr. L J 1211

[Sindh (Sukkur Bench)]

Before Mehmood A. Khan and Mohammed Karim Khan Agha, JJ

NADEEM AHMED RAJPUT---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 3 others---Respondents

C. P. No. D-5212 of 2016, decided on 7th March, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 25(b)---Plea Bargain---Procedure---Phrase 'on such terms and conditions as he may consider necessary' occurring in S. 25(b) of National Accountability Ordinance, 1999---Scope---Alleged loss caused to the government was Rs. 44,81,000 and plea bargain with petitioner was accepted by National Accountability Bureau authorities for Rs.10,85,000---Trial Court declined to approve plea bargain application filed by National Accountability Bureau---Validity---Proper approach in plea bargain cases under S. 25(b) of National Accountability Ordinance, 1999 was for the accused to make a definite and precise offer which could or could not be accepted by National Accountability Bureau through speaking order which if not accepted by National Accountability Bureau could lead to a further offer which again could or could not be accepted by National Accountability Bureau---Words in S. 25(b) of National Accountability Ordinance, 1999, 'on such terms and conditions as he may consider necessary' did not relate to amount of plea bargain but to method and mode and manner of payment including instalments within given dates which could be necessary if accused did not have full amount of agreed plea bargain amount to hand over (although a very large percentage of amount as down payment could be expected to be made), and needed to sell properties in order to make up balance which could take some reasonable but definite and precise amount of time to be recorded in writing in the plea bargain agreement---Amount involved was relatively small in terms of National Accountability Bureau's mandate to investigate corruption cases---High Court acting in discretionary Constitutional Jurisdiction set aside order passed by Trial Court and directed Trial Court to accept amount of plea bargain as agreed with National Accountability Bureau---Petition was allowed accordingly.

Muhammad Islam Khan v. Zarai Taraqiati Bank Ltd. 2013 PLC (C.S.) 795; Bank of Punjab v. Accountability Court No.1 Lahore PLD 2014 Lah. 92; Shamraz Khan v. The State 2005 PCr.LJ 192; Khalid Humayun v. NAB Civil Petition No. 3912 of 2016; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Rauf Baksh Kadri v. The State and others 2003 MLD 777 ref.

Rana Hafiz Tanveer Ahmed for Petitioner.

Muhammad Zubair Malik, A.D.P.G.A., NAB Sukkur for Respondent.

Nisar Ahmad Abro, D.A.-G. on Court's Notice.

2017 P Cr. L J 1250

[Sindh]

Before Aqeel Ahmed Abbasi and Abdul Maalik Gaddi, JJ

MUHAMMAD EHSAN---Applicant

Versus

The STATE (FIA)---Respondent

Criminal Bail Application No. 871 of 2016, decided on 10th October, 2016.

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

----S. 497(1), third proviso---Bail, grant of---Principles---Grant of bail was a rule, if accused had made out a case for bail---Concession of bail was not to be withheld by way of punishment.

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

----S. 497(1), third proviso---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 5(6)---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471, 109 & 34---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Public servant committed or attempt to commit criminal misconduct, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for the purpose of cheating, using as genuine a forged document, abetment, common intention, and acquires, converts, possesses, uses or transfers property knowingly or having reason to believe that such property proceed to crime---Bail, grant of---Statutory delay----Scheduled offence---Special Court in Respect of Banks---Jurisdiction of---Special Court could allow bail to accused charged with a Scheduled Offence inter alia on the grounds of sickness, infirmity or delay in completion of the trial, in case of further inquiry and if there was no likelihood of tampering with the evidence by the accused or that continued detention of the accused would hamper his defence, even if there were reasonable grounds to believe, that accused was guilty of the offence---In the present case, accused was behind the bars for more than two years---Neither accused nor any other person, acting on behalf of accused, was in any way responsible for delay in conclusion of trial---Circumstances suggested that accused had made out a case for the grant of bail on the ground of statutory delay---Accused was allowed bail accordingly.

Faqir Muhammad and others v. Muhammad Akram Khan through Legal Heirs and others 1992 SCMR 2188; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 and Abdul Ghaffar Jamali v. The State 1999 PCr.LJ 1482 ref.

The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 and Abd-e-Ali Nafar v. State 2004 YLR 254 rel.

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

----S. 497(1), third proviso---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 5(6)---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471, 109 & 34---Anti-Money Laundering Act, (VII of 2010), Ss. 3 & 4---Public servant committed or attempt to commit criminal misconduct, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for the purpose of cheating, using as genuine a forged document, abetment, common intention, and acquires, converts, possesses, uses or transfers property knowingly or having reason to believe that such property proceed to crime---Bail, grant of---Statutory delay---Conditions---Bail to accused on the ground of statutory delay could be granted subject to such conditions that the delay in conclusion of trial had not occasioned on account of an act or omission on the part of accused or any person acting on his behalf; that accused was previously non-convict offender for an offence punishable with death or imprisonment for life; that in opinion of court the accused was not hardened, desperate or dangerous criminal and that accused was not involved in an act of terrorism punishable with death or imprisonment for life---If said conditions were not applicable to the case of accused, he was entitled for bail as a matter of right and could not be denied bail under the discretionary powers of the court---Accused was allowed bail in circumstances.

(d) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----Preamble---Preamble of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 provided speedy disposal of cases---High Court observed that delay in imparting justice was likely to cause erosion of public confidence in the judicial system---Delay in disposal of cases created a sense of helplessness, despair, feelings of frustration and miseries---Accused could not be deprived of the liberty without due process of law---If delay occurred in trial due to the act of court or prosecution, liberty of the accused could not be curtailed for the fault on the part of the court or prosecution.

Fida Hussain v. The State and others PLD 2002 SC 46 and Jafer alias Jaferi v. The State 2012 SCMR 606 rel.

Muhammad Anwar Tariq for Applicant.

Muhammad Aslam Butt, D.A.-G.

Inspector Abdul Rauf Shaikh, CBC, FIA.

2017 P Cr. L J 1280

[Sindh (Larkana Bench)]

Before Nazar Akbar and Muhammad Saleem Jessar, JJ

MUHAMMAD AKBAR KHAN and 3 others---Petitioners

Versus

SHO P.S. GARHI KHAIRO, DISTRICT JACOBABAD and others---Respondents

Constitutional Petition No. D-24 of 2017, decided on 23rd February, 2017.

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

----Ss. 190, 193 & 526(3)---Anti-Terrorism Act (XXVII of 1997), S. 23---Power of court of ordinary jurisdiction---Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court---District and Sessions Judge/Additional District and Sessions Judge was not authorized to declare any offence as Scheduled offence and to transfer the case to the special court straightway.

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

----S. 23---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction--- Scope--- Anti-Terrorism Court possessed jurisdiction to transfer case to the court of ordinary jurisdiction.

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

----Ss. 190, 193 & 526(3)---Anti-Terrorism Act (XXVII of 1997), S. 23---Transfer of case from the court of ordinary jurisdiction to Anti-Terrorism Court---Principles---No powers were conferred on the ordinary courts of criminal jurisdiction to transfer the case from its docket to the Court of Anti-Terrorism---If the Sessions Court or Additional Sessions Court was of the opinion that alleged offence was triable by the Anti-Terrorism Court, as the commission of the crime had created panic and terror amongst the people and manner in which crime had been committed had developed sense of fear and insecurity in the minds of people or any section of society, two courses were available to the Sessions Court for transfer of case: firstly, reference would be made to the Chief Justice of High Court in terms of S. 526(3), Cr.P.C.; secondly, Sessions Court would issue notice to the Prosecutor General and to the accused/complainant party/aggrieved person(s) and after providing an opportunity of being heard come to conclusion that the case was of the nature triable by the Anti-Terrorism Court---Challan would be returned to the Investigating Officer/agency for submitting the same before the court having jurisdiction---Constitutional petition was allowed accordingly.

Naseem v. The State 1997 MLD 275 and Muhammad Iqbal and another v. The State 1992 MLD 287 rel.

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

----Ss. 190, 193 & 526(3)---Anti-Terrorism Act(XXVII of 1997), Ss. 6, 7 & 23---Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court---Scope---Allegations against the accused petitioner were that they assaulted upon the complainant party with deadly weapons; in consequence of which nine persons received injuries, out of which six succumbed to injuries---Accused party in order to spread terror, fired Rocket Launcher upon the complainant party---Accused persons joyously fired in the air---Police submitted challan before the court of ordinary jurisdiction---Court of ordinary jurisdiction holding that case against the accused petitioner was triable by Anti-Terrorism Court and sent the case to the Anti-Terrorism Court---Validity---Record showed that neither accused nor other side had been heard and the court of ordinary jurisdiction had straightway decided the question of jurisdiction thereby causing miscarriage of justice---Such findings being against the principles of natural justice, were patently illegal and liable to be set aside---Constitutional petition was allowed and matter was remanded to the court of ordinary jurisdiction with the direction to issue notice to Prosecutor General, accused and complainant party and after hearing all the concerned, pass appropriate order.

Ghulam Muhiuddin Durrani for Petitioners.

Ameer Ahmed Narejo, State counsel and Khadim Hussain Khooharo, DPG for the State.

2017 P Cr. L J 1298

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

BASHIR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 480 of 2011, decided on 10th November, 2016.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Sentence, modification of---Prosecution case was that twenty bags of heroin powder were recovered from attache case/suitcase of accused---Complainant had narrated the whole story of arrest of accused and recovery of heroin, which was quite trustworthy and confidence inspiring---Prosecution witnesses had supported the evidence of complainant---No major contradiction or inherent defect existed in the evidence of complainant on any material point--- No specific enmity had been suggested during the cross-examination of official witnesses---Samples were sent to Chemical Examiner within two days and report was positive---Evidence of the Excise officials was fully corroborated by the positive chemical report---Recovery of Twenty kg. heroin could not be believed to have been foisted upon the accused by the police---Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years' R.I. was modified to Rs. three lac or in default, one year and six months' simple imprisonment accordingly.

Noor Aslam and others v. The State 2006 MLD 113 and Amjad Ali v. The State 2012 SCMR 577 ref.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

(b) Criminal trial---

----Witness---Police employees as witnesses---Police employees were as good witnesses as any other independent witness---Evidence of police employees could not be discarded merely on the ground that they were police employees.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Sentence, modification of---Police officials as sole recovery witnesses, competency of---Principles---Prosecution case was that Twenty kg. heroin powder was recovered from the possession of accused---Prosecution witnesses were Excise officials---Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997---Complainant/Excise Inspector deposed that he asked 4/5 private persons to act as witness but they had refused, which showed that complainant made efforts to make private persons as witness in the case but they refused---Reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the evidence of official witnesses as no legal bar had been imposed in that regard---Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years' R.I. was modified to Rs. three lac or in default, one year and six months' simple imprisonment accordingly.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Sentence, modification of---Recovery of twenty kilograms of heroin powder from the accused---Complainant as Investigating Officer---Effect---No public witness---Contention of accused was that complainant himself was Investigating Officer and all prosecution witnesses were officials of Excise Department---Validity---Police Officer (Excise officer) was not prohibited under the law to be a complainant, if he was a witness to the commission of an offence and also an Investigating Officer, so long as it did not in any way prejudice the accused---Nothing was available on record to show that said officials had enmity against the accused to plant a huge quantity of heroin---Accused had failed to produce evidence in defence to establish animosity against the prosecution witnesses---Witnesses had passed the test of lengthy cross-examination but defence had failed to make any dent--- Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years' R.I. was modified to Rs. three lac or in default, one year and six months' simple imprisonment accordingly.

Zafar v. The State 2008 SCMR 1254 rel.

Fazal-ur-Rehman for Appellant.

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

2017 P Cr. L J 1341

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ZAFAR ALI---Applicant

Versus

Mst. MURADAN and another---Respondents

Criminal Misc. Application No. S-108 of 2015, decided on 16th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Exhumation/disinterment of dead body for determination of cause of death---Grounds---Powers of Magistrate---Scope---Right of relatives of deceased to know cause of death---Magistrate dismissed the application filed by the accused for constitution of Medical Board for fresh post-mortem of the deceased after disinterment of the dead body---Under S. 176(2), Cr.P.C., the Magistrate had ample powers to disinter any dead body to ascertain the actual cause of death of the deceased person----No limitation was provided in criminal law for moving any application for exhumation of grave and disinterment of dead body, but the Magistrate was supposed to examine the information or application prudently, and if he was not satisfied with the averments of such application or was of the opinion that cause of death had already been ascertained properly, then he could decline the said application straightaway---For exhumation of the grave and disinterment of the dead body, mere suspicion was sufficient to ascertain the actual cause of death of the deceased to exonerate any slightest doubt in the minds of the relatives of the deceased, which was their legal right to know---Application for exhumation and disinterment, however, should have been examined judiciously and respect to the deceased and the dead body should have been maintained in view of the injunctions of Islam---Deceased was aged 20/21 years, who had been allegedly strangulated by her husband and others---Police had been informed instantly after commission of the alleged murder and mashirnama of recovery of dead body had been prepared---Inquest report and the corpse of the deceased was sent for post-mortem, after which the Woman Medical Officer had issued her report mentioning therein the cause of death in detail; thus, there was no need or justification for conducting a fresh post-mortem---Application for disinterment had been moved with mala fide intention and with the sole purpose of harassing the complainant and her family and to frustrate the murder case lodged against the accused persons---Impugned order, therefore, did not call for any interference---Application under S. 561-A, Cr.P.C. was dismissed accordingly.

1989 PCr.LJ 1827 and Zaffar Iqbal alias Kaka v. Additional Sessions Judge and 3 others 2005 PCr.LJ 736 rel.

Ubedullah K. Ghoto for Applicant.

Zulfiqar Ali Naich for Respondent.

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

2017 P Cr. L J 1366

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MEHBOOB ALI---Applicant

Versus

The STATE and another---Respondents

Criminal Revision No. 62 of 2015, decided on 15th December, 2015.

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

----Ss. 540 & 200---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon, common object---Power to summon material witness and examine person present---Principles---Application for summoning of witnesses not to be declined in mechanical manner---Accused filed application under S. 540, Cr.P.C. for summoning of the Investigation Officer who had prepared the re-investigation report as defence witness---Trial Court dismissed the application---Trial Court had refused the application of the accused without any justification---Offence in question involved capital punishment; thus, in the price interest of justice, the application should have been examined and considered judiciously in purview of S. 540, Cr.P.C. under which the court had widest scope to consider such plea---Application in question should not have been declined in mechanical manner, when the subsequent report had already been made part of the record and the Trial Court had held through impugned order that judicial notice of said report could be taken at the trial, which reflected that the report had not been discarded by the Trial Court---High Court allowed the application---Revision petition was allowed accordingly.

Muhammad Ashraf v. The State and 4 others 2007 PCr.LJ 905 ref.

Ansar Mehmood v. Abdul Khalique and another 2011 SCMR 713 and Pervez Ahmed v. Munir Ahmed 1998 SCMR 326 ref.

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

----S. 540---Power to summon material witness and examine person present---Scope---Provisions of S. 540, Cr.P.C. confer ample and inclusive powers to the court to issue summons to any person whose evidence is essential for dispensation of justice, whether his name is mentioned in the array of witnesses or not---Court itself, applying its prudent mind, is empowered to call any witness or person irrespective of stage of the proceedings even without moving of any application by the parties, if the same deems essential for just decision of the case.

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

----S. 540---Power to summon material witness and examine person present---Object---Wisdom behind S. 540, Cr.P.C. is to ensure that innocent person should not be convicted and accused may be afforded reasonable opportunity to contradict the allegations of the prosecution and prove his innocence.

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

----S. 540---Power to summon material witness and examine person present---Principles---Application under S. 540, Cr.P.C. should not be declined merely on legal technicalities.

Mian Mumtaz Ali Rabbani for Applicant.

S. Sardar Ali Shah, APG for the State.

2017 P Cr. L J 1399

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Shahnawaz Tariq, JJ

NAZAR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-7 of 2015, decided on 25th February, 2016.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art. 121---Possession, import or export, trafficking or financing of trafficking of narcotic drugs---Appreciation of evidence---Mode of making search and arrest---Burden of proving that case of accused fell within exceptions---Association of public/private witnesses under S. 103, Cr.P.C., requirement as to---Applicability---Statement of police witnesses---Evidentiary value---Complainant and Investigating Officer being the same person---Effect---Prosecution's prerogative as to number of its witnesses to be examined---Delay caused in completion of formalities---Effect---Minor contradictions/improvements---Effect---Prosecution case was based on the evidence of the complainant/Excise Inspector and mashir/Excise Constable supported by the Chemical Analyzer's report---Both said witnesses had narrated the similar facts of the case, including snap checking, arrest of the accused and recovery of 120 kg Charas from the secret cavities of the truck wrapped in 120 packets weighting 1 kg each---Prosecution witnesses had deposed the details of the incident in the same line and fully supported the averments of the FIR and mashirnama of arrest and recovery as well as corroborated the evidence of each other---Defendant had failed to shatter the authenticity of the prosecution evidence during the cross-examination---Provisions of S. 103, Cr.P.C. for association of two public persons, was not applicable in cases of recovery of narcotics from a moving vehicle on the Highways---Police witnesses were as good and respectable as other public witnesses and their statements could not be discarded merely for the reason they were the police employees---Accused had failed to point out any kind of animosity or ulterior motives on part of the complainant regarding his false involvement in present case---Accused raised the objection that the police had released the real culprit, but he had not moved any application before the higher authorities by disclosing the name of the actual culprit nor made any complaint for transfer of the investigation to any other Investigating Officer nor any such application had been moved to the Trial Court; therefore, said plea could not have been considered in view of Art. 121 of Qanun-e-Shahadat, 1984---Complainant had taken separate representative samples from the recovered 129 packets of narcotics substance which was corroborated by the Chemical Analyzer's report, which reflected the 120 sealed paper packets weighing 100 grams each, had been received for chemical examination and said substance had been declared as Charas---Complainant being a police officer was competent to investigate the case if he was witness of offence, and such recovery could not have been defeated merely on the ground that the complainant and the Investigating Officer was the same police officer, if no mala fide was established against the complainant---Prosecution had the prerogative to pick and choose any witness to be examined or not during the trial, and due to non-examination of any witness, no adverse inference could be drawn against the prosecution---Complainant and the mashir examined by the prosecution had satisfactorily furnished explanation for the delay of four days in lodgment of the FIR, as they had consumed three and half hours in checking of 120 packets and completion of other formalities; thus, the delay would not be fatal to the recovery of the narcotics---Minor contradictions or improvements would not be fatal to the prosecution case, and the same were to be over-looked---Prosecution had prima facie succeeded to prove the guilt of the accused---High Court, therefore, maintained the conviction/sentence---Appeal against conviction was dismissed accordingly.

PLD 2004 Kar. 644; PLD 2005 Kar. 128 and 2010 SCMR 927 ref.

PLD 2012 SC 380; 2008 SCMR 1254; Zahoor Ahmed v. The State 2007 SCMR 1519; 2000 SCMR 1758; Muhammad Khan v. The State 2008 SCMR 1616; Anwar Shamim and another v. The State 2010 SCMR 1791 and Hameed Zaid v. The State PLD 2012 SC 380 rel.

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

----S. 25----Criminal Procedure Code (V of 1898), S. 103---Mode of making search and arrest---Non-association of public/private person as mashir of recovery and arrest---Effect---Section 25 of Control of Narcotic Substances Act, 1997 has although excluded the provision of S. 103, Cr.P.C., but the same simultaneously places heavy responsibility upon the prosecution to adduce solid evidence to maintain the transparency of the recovery which can eliminate all possibilities of false implication of any innocent person---Recovery effected from the accused neither becomes doubtful nor loses its evidentiary value merely on the ground that the prosecution witnesses are the police officials and no public person has been associated as mashir.

2008 SCMR 1254 and Muhammad Khan v. The State 2008 SCMR 1616 rel.

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

----S. 29----Presumption of possession of illicit articles---Burden of proof---Scope---Section 29 of Control of Narcotic Substances Act, 1997 cast burden upon the accused to establish his innocence and absolve himself from the allegations of recovered substance, while the prosecution has only to show by evidence that the accused was in physical custody or directly concerned with recovered narcotics substance.

Zahoor Ahmed v. The State 2007 SCMR 1519 and Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

Amanullah for Appellant.

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

2017 P Cr. L J 1451

[Sindh]

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

AAMIR ALI and 2 others---Appellants

Versus

The STATE---Respondent

Spl. Cr. A.T. Jail Appeals Nos. 29, 30, 42 and 43 of 2010, decided on 7th November, 2016.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., common intention, act of terrorism---Appreciation of evidence---Delay of one day in lodging FIR---Effect---Delay in lodging FIR in cases for kidnapping for ransom was not fatal as it was quite common in such cases that initially family were busy looking for the abducted person and were in such a complete state of panic, fear and anxiety---Family member of the abducted person did not immediately consider lodging FIR as usually they were concerned with the safety of their loved one---Circumstances established that delay was not particularly long.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Criminal Procedure Code (V of 1898), S. 103---Kidnapping or abduction for extorting property, valuable security etc., common intention, act of terrorism---Appreciation of evidence---Independent witnesses were not associated in the proceedings of arrest of accused---Effect---Private independent witnesses were not available late at night, thus non-associating private witnesses in the proceedings of arrest of accused persons was not fatal to the prosecution case---Ordinarily, people did not like to involve themselves in such criminal matters where they were to appear as witness against hardened criminals.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons kidnapped the minor son of complainant for ransom---Record showed that many discrepancies, material contradictions, irregularities and unanswered questions were found in the case---Kidnapping, ransom demand, arrest of accused persons and recovery of abductee had happened within two days, which seemed to be improbable---No eye-witness to the kidnapping of minor was available with the prosecution---Mobile number was not mentioned in FIR, as to from where the ransom demand was made---Accused persons did not contact the complainant directly---Accused persons allegedly had contacted brother of complainant for ransom, with whom he had enmity, thus false involvement of accused by the brother of complainant could not be ruled out---Most of the witnesses were interested witnesses---No evidence was available to the effect that phone call was made to the brother of complainant from the alleged kidnappers phone---No proof of demanding ransom was available except the statement of brother of complainant---No attempt was made by the complainant or anyone else to arrange for ransom money---No statement was taken from the abductee after his recovery till the trial---Evidence of abductee was not confidence inspiring because of his tender age---Complainant had shown the accused to the abductee, outside the court prior to his identification in the court---Prosecution had alleged that abductee was recovered from a chowk, while he was recovered from the house of prosecution witness---Circumstances and facts of the case created doubt about the veracity of the prosecution story, benefit of which would resolve in favour of accused persons---Conviction and sentences recorded against accused persons by the Trial Court were set aside in circumstances.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for extorting property, valuable security, common intention, act of terrorism--- Appreciation of evidence--- Identification parade---Necessity---No direct evidence for kidnapping the minor was available with the prosecution---Identification parade was to be held as soon as possible after the recovery of the abductee but no such parade was conducted---In the absence of identification parade, implication of accused could not advance the plea of prosecution to prove the culpability of accused---Conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

(e) Criminal trial---

----Benefit of doubt---Prosecution was required to prove its case beyond a reasonable doubt, which was the cornerstone of the criminal standard of proof---If one doubt created regarding the truth of the charge, benefit of same would be extended to the accused.

Faheem Ahmed Farooqui v. State 2008 SCMR 1572 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Nisar Ahmed Metlo for Appellants.

Mohammed Iqbal Awan, APG for the State.

2017 P Cr. L J 1505

[Sindh]

Before Omar Sial, J

MUKHTIAR AHMED SHAIKH---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Appeal against Acquittal No. 144 of 2016, decided on 30th December, 2016.

(a) Electricity Act (IX of 1910)---

----S. 39---Theft of electricity---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused persons were bypassing the electric meters and thus involved in the theft of electricity---Record showed that allegation of complainant was that he was present at the time of site inspection---Prosecution witnesses categorically deposed that complainant was not present at the time of site inspection---Said witnesses were themselves employees of Electricity Supply Company and were also members of the inspection team---Depositions of said witnesses were in complete contradiction to the prosecution case---Circumstances created doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused persons---Appeal against acquittal was dismissed accordingly.

(b) Electricity Act (IX of 1910)---

----S. 39--- Theft of electricity--- Appreciation of evidence---Appeal against acquittal--- Photographs of the site--- Evidentiary value---Prosecution case was that accused persons were involved in the theft of electricity---Prosecution produced photographs of the site in order to prove the charge against the accused persons---Nothing was available in the produced photographs, which could connect the accused persons with the commission of offence---Said photographs attached with the memo of appeal did not help the prosecution case in any manner---Appeal against acquittal was dismissed accordingly.

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

----S. 417(2-A)---Electricity Act (IX of 1910), S. 39---Theft of electricity---Appreciation of evidence---Appeal against acquittal---Said S. 417-2(a), Cr.P.C. provided that aggrieved person could, within thirty days of the acquittal order, prefer an appeal against acquittal---In the present case, appeal was barred by time by five days---Ground for condonation stated that "in order to do justice the court should condone the time lapse"---High Court observed that justice should work for the prosecution and the defence, in the absence of cogent reasons for the delay, grounds taken by the appellant was without much force---Matter of delay could be taken leniently if the appellant had made out a case of condonation---No proof had been given by the appellant which merited interference---Appeal against acquittal was dismissed.

(d) Electricity Act (IX of 1910)---

----S. 39---Theft of electricity---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Record showed that FIR was registered after the delay of two days---FIR was silent on the cause of delay---Prosecution had taken the position that delay was caused because the accused promised to make payment---Said claim of prosecution was unsubstantiated by evidence---FIR did not indicate such a reason---Circumstances created doubt about the veracity of prosecution case---Appeal against acquittal was dismissed accordingly.

(e) Electricity Act (IX of 1910)---

----S. 39---Criminal Procedure Code (V of 1898), S. 103---Theft of electricity---Appreciation of evidence---Appeal against acquittal---Prosecution had taken the wire into custody, which was used for getting direct supply---FIR itself revealed that the recovered wire etc. was not sealed on the spot---Said wire was taken back to the police station and sealed later---No recovery memo was made on the spot---No witnesses were cited---Alleged inspection had admittedly taken place during early evening and inspection team of Electricity Supply Company had admittedly entered the premises where families resided---No independent person had been cited as witness and provision of S. 103, Cr.P.C. was violated---Appeal against acquittal was dismissed in circumstances.

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

----S. 417(2-A)---Appeal against acquittal---Interference by superior court--- Scope--- Double presumption of innocence worked in favour of acquittal of accused---Said presumption of innocence could only be disturbed when it was shown that the Trial Court disregarded material evidence; missed such evidence and received such evidence illegally---No proof had been given by the appellant which merited interference--- Appeal against acquittal was dismissed accordingly.

Muhammad Zaman v. The State 2014 SCMR 749; Ghulam Sikander v. Mamaraz Khan PLD 1985 SC 11 and Haji Amanullah v. Munir Ahmed 2010 SCMR 222 rel.

Malik Khushhal Khan, SPP for Appellant.

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

Nemo for Respondents Nos. 2 to 4.

2017 P Cr. L J 1525

[Sindh (Hyderabad Bench)]

Before Syed Muhammad Farooq Shah and Muhammad Iqbal Mahar, JJ

FEROZE KHAN and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-83 of 2015, decided on 21st November, 2016.

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

----S. 9(c)--- Possession of narcotic substance--- Appreciation of evidence---Sentence, reduction in---Prosecution case was that 15000 grams opium was recovered from the possession of accused persons---Accused persons were arrested at the spot---Prosecution witnesses had fully supported the case and corroborated the statements of each other---Prosecution witnesses were consistent on the material points that opium was recovered from accused persons---Samples were separated and sealed---Case property was sealed at the spot in presence of witnesses---Nothing could be brought on record despite of lengthy cross-examination by the defence---Recovered substance was proved to be opium by the positive report of chemical analysis---Accused had failed to prove their enmity with the police---Appeal against conviction was dismissed, however keeping in view the settled yardstick for punishment, their conviction and sentence were reduced/modified accordingly.

Ghulam Murtaza v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

(b) Criminal trial---

----Witness---Minor discrepancies in the statements of prosecution witnesses---Effect---Minor discrepancies in the statements of the prosecution witnesses had come on record due to lengthy cross-examination---Such discrepancies, could not be considered if had not affected the merits of the case.

Zulfiqar Ahmed and another v. The State 2012 SCMR 492 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses, competency of---Principles---Prosecution case was that 15000 grams opium was recovered from the possession of accused persons---Prosecution witnesses were police officials---Defence had alleged that private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997---Appeal against conviction was dismissed, however keeping in view the settled yardstick for punishment, their conviction and sentence were reduced/modified accordingly.

Ghulam Hussain and 9 others v. The State 2011 PCr.LJ 72; Shafiullah v. The State 2007 YLR 3087 and Shafqat Mahmood v. The State 2015 YLR 2163 ref.

(d) Witness---

----Police officials as witnesses---Police officials were as good witnesses as any other public witness unless the animosity was proved against the culprits---Evidence of police officials could not be discarded merely on the ground that they were police officials.

Nur Hassan v. The State 1993 SCMR 1608 rel.

Ghulamullah Ghang for Appellants Nos. 1 to 4.

Muhammad Nazir Tanoli for Respondent No.5.

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

2017 P Cr. L J 1547

[Sindh (Sukkur Bench)]

Before Syed Hasan Azhar Rizvi and Aftab Ahmed Gorar, JJ

GHULAM HUSSAIN---Petitioner

Versus

CHAIRMAN, NAB, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others---Respondents

Constitutional Petition No. D-2857 of 2016, decided on 15th December, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 25(a)--- Criminal Procedure Code (V of 1898), Ss. 249-A & 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Reference by National Accountability Bureau, quashment of---Scope---Petitioner failed to honour his voluntary return and reference was submitted by NAB authorities---Contention of petitioner was that he had paid the alleged amount after his reinstatement---Validity---High Court under inherent jurisdiction could quash the proceedings in exceptional case without waiting for Trial Court to invoke powers under S. 249-A or 265-K, Cr.P.C.---Intricate questions of facts had been proposed by the prosecution for trial which needed to be thoroughly enquired by the Trial Court---Releasing the petitioner prematurely would amount to pre-judge his guilt which was without any legal justification---National Accountability Bureau authorities had found material showing involvement of petitioner and on the basis thereof reference had been submitted--- Trial Court had taken cognizance of the offence--- Petitioner could seek remedy of his premature acquittal in terms of Ss. 249-A/265-K, Cr.P.C.---High Court could not indulge such exercise to thresh out disputed and complicated questions of facts---Constitutional petition was dismissed in limine.

Zulfiqar Ali Naich for Petitioner.

Abdul Majeed Memon, Special Prosecutor NAB (Sukkur).

Mian Mumtaz Rabbani, D.A.G.

2017 P Cr. L J 1559

[Sindh (Sukkur Bench)]

Before Faheem Ahmed Siddiqui, J

TALIB HUSSAIN---Applicant

Versus

The STATE and 3 others---Respondents

Cr. Miscellaneous Application No. 499 of 2016, decided on 2nd January, 2017.

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

----S. 173---Power of Magistrate to agree or disagree with police report submitted under S. 173, Cr.P.C.---Scope---Such report, submitted before the court, was not binding---Magistrate was empowered to agree with such report or to form contrary view after scrutiny of the entire material available before him---Not necessary for a Magistrate to dispose of every report produced before him under S. 173, Cr.P.C. with a detailed order after discussing every aspect of the case.

Falak Sher and another v. The State PLD 1967 SC 425; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 rel.

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

----Ss. 190, 173 & 561-A---Penal Code (XLV of 1860), Ss. 324, 334, 337-A(i), 337-F(i) & 506---Attempt to commit qatl-i-amd, itlaf-i-udw, shajjah-i-khafifah, damiyah, criminal intimidation---Cognizance of offence by Magistrate---Agreement with police report---Police had submitted its report under S. 173, Cr.P.C. and requested the disposal of case under C-class---Scope---Complainant had reported the incident to the police in which his brother had received serious injuries allegedly caused by the officials of the SEPCO---Happening of incident was not denied but not as narrated by the complainant in the FIR---Record showed that injured had himself put his hand on the electricity line in which 11,000 KV current was passing---Allegation of complainant was not conceivable that proposed accused had persuaded the injured, who was a layman, to work on high powered line---Complainant, during investigation, had not produced any instrument necessary for working on high powered electricity lines or any certification of his competence---Circumstances established that injured had himself tried to interfere with the high-powered electricity lines with some ulterior motives---Magistrate had passed the order after proper scrutiny of the available material---Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Muhammad Aslam Shahani for Applicant.

2017 P Cr. L J 1619

[Sindh]

Before Zafar Ahmed Rajput and Muhammad Saleem Jessar, JJ

SOHAIL A. SALAM MUGHAL---Petitioner

Versus

VII ADDITIONAL DISTRICT JUDGE, KARACHI and 2 others---Respondents

Constitutional Petition No. D-4293 of 2016, decided on 5th January, 2017.

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

----Ss. 516-A, 523 & 550---Superdari of vehicle---Failure to establish ownership of vehicle---Effect---Petitioner/complainant had lodged FIR under S. 381-A, P.P.C. with the assertion that he parked his car in the street but same was stolen by unknown accused persons---Vehicle in question had been taken into possession by police under Ss. 523 & 550, Cr.P.C. and case was disposed of under A-Class---Application of the petitioner for superdari of the car was dismissed on the ground that he failed to produce any valid documents regarding its ownership---Owner of the vehicle on record preferred an application in terms of S. 523, Cr.P.C., which was allowed by the Trial Court---Record showed that subject vehicle was registered in the name of the said owner---Petitioner had failed to bring on record any material to substantiate that he was in possession of the vehicle and stated that he had purchased the vehicle in question in the name of recorded owner, who was his ex-wife---Vehicle in question was stated to have been given to the ex-wife, after dissolution of marriage, to facilitate his three children---Claim of petitioner appeared to be self-contradictory for the reasons that children of the petitioner were residing with his ex-wife, thus the vehicle should have lastly been in her possession---Circumstances established that petitioner was not lastly in possession of the vehicle---Constitutional petition was dismissed in circumstances.

Munir Ahmed v. Barkhurdar and 2 others 1992 SCMR 1454 and Rao Mohammad Talha v. The State 2001 YLR 1371 ref.

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

----Ss. 516-A, & 517---Movable or immovable property---Determination of ownership---Question of ownership and title of any movable or immovable property was to be determined by the competent civil court, as the same was not in the domain of criminal court.

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

----Ss. 516-A, 523 & 550---Power of Magistrate to make order for disposal of property seized by police---Scope---Magistrate was empowered under S. 523, Cr.P.C. to make such order "as he thinks fit" about the disposal or delivery of the property, either seized under S. 51 of the Cr.P.C., or alleged or suspected to have been stolen, or found or created suspicion of the commission of any offence, to the person entitled to the possession.

Syed Ehsan Raza for Petitioner.

Abrar Ali Khichi, Assistant Prosecutor-General for Respondents.

2017 P Cr. L J 1642

[Sindh]

Before Shahnawaz Tariq, J

MUKHTAR JAVED---Applicant

Versus

The STATE---Respondent

Bail Application No. 635 of 2016, decided on 20th June, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 34---Rape, common intention---Bail, refusal of---Allegation against accused was that he served intoxicated drink to the victim, who became unconscious and accused committed zina with her---Medical certificate showed that victim was no more virgo-intecta---Accused made video clip of said sexual act--- Accused blackmailed the victim and demanded Rs. 50,000---Victim committed theft in her house and paid demanded amount to the accused---Accused further demanded Rs. 100,000/- from the victim but she could not pay the same---Accused uploaded said video clip on internet, which was not only watched by public at large but her family members also---Alleged offence was heinous in nature and non-compoundable---Act of blackmailing the victim and uploading video on internet reflected that accused was hardened criminal---Bail was refused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 34---Rape, common intention---Bail, refusal of---Delay in lodging of FIR---Effect---Allegation against accused was that he served intoxicated drink to the victim, when she became unconscious accused committed zina with her---Accused made video clip of said sexual act---Accused uploaded said video clip on internet, which was not only watched by public at large but her family members also---Victim and her family members had been evading to approach the police instantly only to save the future of victim as well as respect of her family, hence delay in lodging FIR had been explained satisfactory---Bail was refused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 34---Rape, common intention---Bail, refusal of---Affidavits by complainant and victim having no objection if bail was granted to accused---Validity---Whether compromise had been effected between the parties was not mentioned in the affidavits---Affidavits were filed only to create dent in the prosecution case to enable accused to obtain bail, which were contrary to the averments of FIR, statements under Ss. 161 & 164, Cr.P.C.---Said affidavits had no evidentiary value nor it could defeat the statement of victim recorded before the Magistrate in presence of accused---Bail was refused in circumstances.

2010 PCr.LJ 1482; 2012 YLR 2228; 2016 YLR 343; 2011 YLR 1921; 2008 YLR 2357; 2013 MLD 1115; 2012 MLD 810; 2014 YLR 2137; PLD 1997 SC 437 and 2013 PCr.LJ 904 ref.

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

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

----S. 497---Bail---Principle---Observations made in bail granting order were tentative in nature---Trial Court was to decide the case purely on its merits.

Sardar Sheeraz Anjum for Applicant.

Sartaj Ahmed Khan for the Complainant along with Complainant and victim.

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

2017 P Cr. L J 1658

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

SHAKEEL SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 603 of 2015, decided on 25th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 114, 337-H(2), 147 & 149---Attempt to commit qatl-i-amd, abettor present when offence was committed, hurt by rash or negligent act, rioting, common object---Bail, grant of---Further inquiry---Parties had dispute with each other---Seven accused persons allegedly armed with lethal weapons came at the spot and only accused and co-accused made straight fires on the injured, who sustained only one injury at his right thigh, which was non-vital part of the body---None of culprits repeated fire though complainant and injured were at the mercy of accused persons; which prima facie indicated that they had no intention to commit murder--- Medical report showed that injured did not sustain any bone fracture---One and only injury sustained by the injured, fell within the purview of (Mutalahimah) under S.337-F(iii), P.P.C., which was punishable for Daman and imprisonment for 3 years---Section 337-F(iii), P.P.C. did not attract S. 497(1), Cr.P.C.---Prosecution, during the period of more than 7 months had failed to examine a single witness to substantiate the charge against accused---Investigation had already been completed, and accused was no more required to the Police---Further detention of accused, would not serve any useful purpose---No apprehension of tampering with the prosecution evidence existed---Court while examining the question of bail, had to consider the minimum aspect of the sentence, provided for the alleged offence in Schedule---Accused having succeeded to make out a case for grant of bail on the ground of further inquiry, he was granted bail, in circumstances.

2009 MLD 348; 2010 MLD 1052; 2000 PCr.LJ 1917; 1994 PCr.LJ 1769 and 1998 SCMR 500 ref.

Qurban Ali Malano for Applicant.

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

2017 P Cr. L J 1711

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Muhammad Humayon Khan, JJ

ALI MUHAMMAD alias ALLAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. D-10 of 2016, decided on 5th October, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 396, 324, 353, 427, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Dacoity with murder, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duties, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Bail, refusal of---Accused (petitioner) was specifically named in FIR---No animosity had been shown by the accused against police (complainant)---Alleged offence fell within prohibitory clause of S. 497, Cr.P.C.---Accused persons were hardened, desperate and dangerous criminals and their act amounted to "terrorism"---Bail was declined.

Dhanibux v. The State 1999 MLD 2028 rel.

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

----S. 497---Bail---Scope---Offence not falling under prohibitory clause of S. 497, Cr.P.C.---Court could decline to admit an accused to bail if there exist a recognized exceptional circumstances---Accused could not claim bail as a matter of right under such circumstances.

Imtiaz Ahmed and another v. The State PLD 1997 SC 545 rel.

Muhammad Tarique Maitlo for Applicant.

Saleem Akhtar Buriro, Additional P.-G. for the State.

2017 P Cr. L J 14

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf and Shehram Sarwar Ch., JJ

ABRAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 408 of 2009, heard on 1st October, 2015.

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

----S. 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotics---Appreciation of evidence---Non-production of case property before court---Effect---Material contradictions existed in the evidence available on the record---Case property had not been produced by the police before the trial court without any justification, which showed that the police had malice towards the accused regarding recovery of the contraband---Production of the case property before the court was the primary duty of the police in order to bring home the guilt of the accused---Non-production of the case property was fatal to the prosecution's case, and the same had destroyed the very foundation of the case---Non-production of the case property, therefore, had created a serious dent in the prosecution case---Delay of more than one month in sending the sample of the recovered narcotic to the Chemical Examiner had also cast serious doubt with regard to the occurrence---Prosecution had failed to prove the charge against the accused---High Court, by giving benefit of the doubt, acquitted the accused---Appeal against the conviction was allowed accordingly.

Riasat Ali v. State 2004 PCr.LJ 361; Amjad Ali v. The State 2012 SCMR 577 and Agha Qais v. The State 2009 PCr.LJ 1334 rel.

(b) Criminal trial---

----Benefit of doubt---No one can be punished on basis of shaken evidence and if any doubt arises, the benefit of the same must be given to the accused as a matter of right and not as of grace---In granting benefit of doubt, single infirmity is sufficient.

Rao Sajjad Ali for Appellant.

Muhammad Abdul Wadood, DPG for Respondents.

2017 P Cr. L J 46

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Sardar Ahmad Naeem, JJ

MUNAWAR HUSSAIN---Petitioner

Versus

JUDGE, ATC II, LAHORE and 2 others---Respondents

Writ Petition No. 36371 of 2015, decided on 18th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 185(2), 179, 235 & 561-A---Anti-Terrorism Act (XXVII of 1997), Ss. 12, 17 & 21-M---Petitioner/accused arrested in the FIR registered for kidnapping of the complainant's son from (Lahore) and the Anti-Terrorism Court at (Lahore) took cognizance of the offence against the petitioner---Complainant's son was recovered from (Bannu, Khyber Pakhtunkhwa) from the custody of the other accused persons and in that regard a second FIR was lodged against the accused with the police station at (Bannu)---Petitioner, for fair trial and safe administration of justice, sought summoning of the record and accused persons of the second FIR at Lahore on the ground that the alleged abduction of the complainant's son at Bannu and his subsequent recovery from there was continuation of the first FIR registered at Lahore---Validity---High Court had the jurisdiction in the matter when the Anti-Terrorism Court at Lahore had already taken cognizance of the case and directed submission of supplementary challan in that regard---Under S. 235, Cr.P.C. trial of more than one offence of same acts had to be conducted before one court---Under S. 179, Cr.P.C., when acts of same transaction jointly constituted the same offence, that offence could be inquired into and tried within the limit of the court under whose jurisdiction the act was done or ensued---If such a situation had arisen within the local limits of two different courts of two different Provinces, the Legislature had provided the solution for the same in S. 185(2), Cr.P.C., according to which the court trying the case of first act would try the case of subsequent acts of the same transaction, and in that regard the High Court had been empowered to pass an appropriate order under S. 185(2), Cr.P.C.---Section 12 of Anti-Terrorism Act, 1997 provided that whenever a scheduled offence was committed, the same was only triable by the court constituted under Anti-Terrorism Act, 1997---Under S. 29 of Anti-Terrorism Act, 1997, the courts constituted under the Act had precedence over the ordinary courts of law except the High Court---Court at Lahore, although, had been constituted under the Special Act and ordinarily dealt with only scheduled offences, however, S. 17 of Anti-Terrorism Act, 1997 provided that the Special Court could also try an offence other than the scheduled offence---Section 21-M of the Act provided that the Court, while trying any offence under the Act, might also try any other offence with which an accused might be charged under the Cr.P.C. at the same trial if the offence was connected with such other offence---High Court, directed the Secretary Home Department, Government of the Punjab, to ensure production of the record and accused of the FIR registered at the police station at Bannu at Lahore for their trial before the Anti-Terrorism Court at Lahore---Constitutional petition was allowed in circumstances.

Ali Zia Bajwa for Petitioner.

2017 P Cr. L J 79

[Lahore (Rawalpindi (Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

SAQIB ZEB alias SAQI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.83, 94 of 2006 and Criminal Revision No. 59 of 2006, heard on 18th February, 2016.

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

----Ss. 302, 324 & 34---Qatl-i-amd; attempt to commit qatl-i-amd; common intention---Appreciation of evidence---Accused persons were carrying rifles, and the present accused had been assigned repeated fire shots both on the deceased and on the injured---Recovery of the 30-calibre pistol at the instance of present accused was not consistent with the case originally structured in the complaint---Weapon had been substituted and another person had been added/implicated as accused through supplementary statement---Accused, subsequently implicated through supplementary statement, had been assigned the shot to the deceased with a 12-calibre gun---Doctor had retrieved six pellets and one plastic cover from inside the dead body and there was only one exit wound observed on the dead body, which aspect of the medical evidence was not in line with the ocular account---Substitution of the weapon had rendered the Forensic Science Laboratory report meaningless; even otherwise, the casings had been dispatched subsequent to the arrest of the present accused and as such the report was not of much help to the prosecution---After the Trial Court had disbelieved the prosecution evidence regarding two out of the three identically placed co-accused, additional independent corroboration was required to consider the same set of evidence to the detriment of the present accused---Rejection of motive and inconsequential recovery could not justify to be as an independent corroboration---Supplementary statement was not in consonance with the brief facts of the case narrated in the inquest report, which suggested that the exercise had been undertaken at a later point than stated therein---High Court, therefore, setting aside the conviction, acquitted the accused---Appeal against conviction was allowed accordingly.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----S. 342---Power to examine accused---Principles---Accused cannot be convicted after rejection of the prosecution evidence merely on the basis of his statement under S. 342, Cr.P.C.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----Ss. 161 & 154---Examination of witnesses by police---Supplementary statement---Scope---Supplementary statement for all intent and purposes is a statement under S. 161, Cr.P.C., and the same cannot be equated with the FIR nor can the same be read in extension thereof.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Ch. Afrasiab Khan for Appellant.

Qausain Faisal Mufti for the Complainant.

Muhammad Usman Mirza, Deputy Prosecutor General with Ilyas, SI for the State.

2017 P Cr. L J 114

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

SAJJAD BHATTI and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 23-J, 76 of 2013 and Murder Reference No. 24 of 2013 heard on 20th October, 2016.

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

----Ss. 302 & 392--- Qatl-i-amd and robbery--- Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Matter was reported to the police after the delay of 18 hours, whereas the police station was situated only 16 kilometers away from the place of occurrence---No plausible or convincing reason for said delay was available on record---Such unexplained delay in reporting the matter to the police cast serious doubt about the veracity of the prosecution story---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 rel.

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

----Ss. 302 & 392--- Qatl-i-amd and robbery--- Appreciation of evidence---Last seen evidence---Scope---Two prosecution witnesses had alleged that they had lastly seen the deceased in the company of accused persons in a car---Fact remained that one prosecution witness informed the complainant about said fact after seven days of the occurrence while other witness after thirteen days of the occurrence---No plausible explanation was available on record as to why said prosecution witnesses kept mum for such a long time despite the fact that one said prosecution witness was Mohallahdar of complainant and the other had business relation with the complainant---Prosecution story as per FIR was that both the accused came on a car and hired the car of deceased, whereas complainant had alleged during trial that one accused sat in the car and other accused followed them---Record was silent as to why the accused persons hired car of deceased when they had their own car---Attending circumstances suggested that evidence of last seen furnished by prosecution witnesses was of no avail to the prosecution---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

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

----Ss. 302 & 392---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery---Appreciation of evidence---Test identification parade---Prosecution witnesses had identified the accused as real culprits during the test identification parade, whereas the prosecution case was that one of the prosecution witnesses had disclosed the name of both the accused to the complainant more than two months prior to the test identification parade---Complainant had stated during trial that he had visited the police station twice when accused were on physical remand---Accused were not assigned any role by the prosecution witnesses---When prosecution witnesses were aware about the accused persons prior to carrying out of test identification parade, doubt was created about the authenticity of test identification parade---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 rel.

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

----Art. 22---Identification parade---Evidentiary value---Identification of accused in the identification parade without attributing to them their role in the crime was of no evidentiary value.

Khadim Hussain v. The State 1985 SCMR 721; Lal Singh v. Crown ILR 51 Lah. 396 and Ghulam Rasool and 3 others v. The State 1988 SCMR 557 rel.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Recovery of dead body of the deceased---Dead body of deceased was recovered from a wheat field, during search by the complainant party---Prosecution had not brought on record through any solid and convincing evidence as to who was the actual owner of the wheat field from where the dead body of the deceased was recovered---Prosecution had not claimed that dead body of the deceased was recovered on the pointation of the accused---Such evidence could not be used against the accused in circumstances.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Joint recovery of car and other things belonging to the deceased---Relevance---Recovery of car, mobile phones, copy of I.D. card, copy of driving licence and copy of registration book were effected at the instance of accused were inconsequential---Both the accused were not owner of the place from where the said recoveries were effected---Circumstances suggested that joint recovery of car and other things belonging to the deceased could not be taken into consideration against the accused, being unimportant---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Recovery of pistol as weapon of offence---Crime empties were sent to the Forensic Science Laboratory after more than one month of the incident without there being any satisfactory explanation---Accused were arrested after more than two months of the incident and on their personal search, pistol was recovered---Such circumstances did not appeal to a prudent mind as to why the accused kept pistol with them for such a long time having knowledge that the same could be used against them as incriminating evidence---Attending circumstances created doubt about the veracity of the prosecution case, benefit of which would be given to the accused---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Medical evidence---Medical evidence produced by the prosecution was not of much avail because the alleged murder had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicating in the case---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 rel.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Circumstantial evidence, reliance upon---Scope---Circumstantial evidence, if supported by defective or inadequate evidence, could not be made basis for conviction on a capital charge---Court had to take extraordinary care and caution before relying on the circumstantial evidence---To justify the inference of guilt of an accused person, circumstantial evidence must be of quality that was incompatible with the innocence of the accused; if circumstantial evidence was not of such a standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment---Better and safe course in such circumstances would be not to rely upon such circumstantial evidence---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court was set aside.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---benefit of doubt---Prosecution was 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 the defence---In the present case, prosecution failed to discharge its responsibility of proving the case against the accused---If there was a single circumstance which created doubt regarding the prosecution case, the same was sufficient to give benefit of doubt to the accused---Present case was replete with number of circumstances which had created serious doubt about the prosecution story, benefit of which resolved in favour of accused---Appeal was allowed in circumstances and conviction and sentence recorded by Trial Court were set aside.

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

----Ss. 302 & 392---Qatl-i-amd, robbery---Appreciation of evidence---Abscondence---Question of abscondence of accused not put to the accused while recording their statement under S. 342, Cr.P.C.---Effect---Such piece of evidence could not be relied upon while recording/maintaining conviction.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Barrister Danyal Chaddar and Ms. Sheeba Qaisar for Appellant (in Criminal Appeal No. 23-J of 2013).

Hashim Sabir Raja and Nawab Ali Mao for Appellant (in Criminal Appeal No.76 of 2013).

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Khawaja Awais Mushtaq for the Complainant.

2017 P Cr. L J 147

[Lahore]

Before Mirza Viqas Rauf and Sardar Muhammad Sarfraz Dogar, JJ

ZAHID ALI NOOR---Petitioner

Versus

NAB and others---Respondents

Writ Petition No. 30921 of 2016, decided on 22nd November, 2016.

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

----Ss. 16-A (a) & 24(a)---Arrest during pre-arrest bail---Cognizance by National Accountability Bureau (NAB)----Principle---Accused, on cognizance of NAB sought ad-interim pre-arrest bail---Accused was on pre-arrest bail granted by court of competent jurisdiction at the time of arrest---Effect---When case was already pending before court of competent jurisdiction, NAB could not have taken cognizance of the matter without invoking provisions of S. 16-A(a) of National Accountability Ordinance, 1999---Constitutional petition was allowed accordingly.

Anti-Corruption Establishment, Punjab through D.G. v. National Accountability Bureau through Chairman NAB and others 2016 SCMR 92 rel.

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

----S. 9(a)(ix) & (x)---Cheating and criminal breach of trust---Scope---Offences of cheating and breach of trust became cognizable under National Accountability Ordinance, 1999, if same were committed with members of public at large.

Abdul Aziz Memon v. State PLD 2013 SC 594 and Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.

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

----S. 497(2)---Bail---Further inquiry---When there existed reasonable grounds for further inquiry into the guilt of accused, the accused became entitled to bail as a matter of right and not grace.

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

----S. 9(a) & Preamble---Object and purpose of National Accountability Ordinance, 1999---Private dispute---National Accountability Ordinance, 1999 was not meant to allow private individuals to settle their disputes by seeking interference of NAB authorities.

Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 and Muhammad Rasheed Hassan v. The State through Secretary Ministry of Interior and another PLD 2008 Kar. 146 rel.

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

----S. 9(a)(ix)(x) & (b)--- Companies Ordinance (XLVII of 1984), Ss.2(7)(8) & (9)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Cheating a company---Delay in conclusion of trial---Accused who was an employee in complainant-company was alleged to have committed cheating and breach of trust with the company---National Accountability Bureau (NAB) arrested accused on the ground that complainant-company was a public limited company and cheating or committing breach of trust with such company was an offence in relation to public at large---Validity---Company was an artificial person and it could act only through some human agency called Board of Directors to control and administer affairs of the company by acting as its agent but they were not agent of members of the company---Public limited company was involved in the present case which was covered under the head of companies limited by shares wherein the word 'liability' referred to the liability of shareholder towards the company---Company was limited to the value of shares subscribed to or the amount of guarantee given by them which made it clear that members of public at large were not involved---No progress had taken place towards conclusion of trial after filing of Reference by NAB authorities---Where trial of case was not concluded within 30 days from the date of submission of challan, accused automatically became entitled to bail---Commencement of trial could not come in the way of grant of bail, if in the opinion of court, a case for further inquiry was made out---Bail was allowed in circumstances.

Aga Jehanzeb v. NAB and others 2005 SCMR 1666 and Syed Khalid Hussain Shah v. The State 2014 SCMR 12 rel.

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

----S. 18---Standing Operating Procedures (SOPs) "Priority for Cognizance of Cases", serial (iv)---Cognizance by National Accountability Bureau (NAB)---Pecuniary jurisdiction---Standing Operating Procedures (SOP)---Scope---In order to rule out misuse of discretion and to standardize selection procedure for consideration for cognizance of cases to be investigated by NAB, the Chairman NAB had framed Standing Operating Procedures (SOPs) with the title "Priority for Cognizance of Cases"---Serial No.(iv) of said SOPs provided that NAB had pecuniary jurisdiction in cases involving interest of members of public at large, where number of defrauded persons was more than 50 persons and amount involved was not less than Rs.100 million.

Rauf Bakhsh Kadri v. The State 2003 MLD 777 and Amjad Hussain v. Chairman NAB and another C.P. No. D-1210 of 2016 rel.

Qazi Misbah-ul-Hassan and Muhammad Zain Qazi for Petitioner.

2017 P Cr. L J 155

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

USMAN ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, TOBA TEK SINGH and 9 others---Respondents

W. P. No. 6137 of 2016, decided on 23rd September, 2016.

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

----S. 5---Criminal Procedure Code (V of 1898), S. 265-K---Co-sharer of property in dispute---Status---Land grabbers/qabza group---Scope---Accused filed application for his acquittal on the ground that dispute was of civil nature---Trial Court dismissed the said application on the ground that there was sufficient material on the record to connect the accused with the commission of offence---Validity---Ownership of disputed land was at variance regarding which civil litigation was pending involving title of land---Parties were co-shares of the land in question and "co-sharer" did not fall within the definition of "land grabbers/qabza group"---Dispute between the parties was of civil nature and provisions of Illegal Dispossession Act, 2005 were not attracted---Illegal Dispossession Act, 2005 was restricted to class or group of persons who had antecedents of being property grabbers/qabza group---Civil court being proper forum for the dispute in the present case, further proceedings in the complaint would be futile exercise---Trial Court should have allowed the application under S. 265-K, Cr.P.C.---Complainant had attempted to convert civil dispute into criminal case which was liable to be struck down being abuse of process of law---Civil dispute could not be allowed to be converted into a criminal case by implicating co-sharers of land in question---Impugned order was not only perverse but also arbitrary which could not sustain in the eyes of law---Impugned order passed by the Trial Court was set aside as there was no probability of conviction of accused even after recording of evidence---Application for acquittal of accused was accepted and accused was acquitted of the charge---Sureties of accused were discharged---Constitutional petition was allowed in circumstances.

Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 rel.

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

----Preamble---Scope---Illegal Dispossession Act, 2005 was a special legislation to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers---Object of said Act was to curb the activities of property grabbers.

Rai Akhtar Suleman for Petitioner.

Adnan Tariq, AAG with Munir, S.I. for the State.

Mian Tariq Hussain for Respondents.

2017 P Cr. L J 197

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch. JJ

NAJAF alias NAJJI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 1480, Criminal Revision No. 845 and Murder Reference No. 312 of 2013, heard on 9th November, 2016.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he committed murder of the son of complainant---Prosecution produced two eye-witnesses to prove the occurrence---Occurrence took place in the field outside the abadi of the village in the dark hours of the night---Complainant did not mention the source of light in the crime report nor the prosecution witnesses had started in that regard---Prosecution witnesses allegedly had seen the occurrence from a distance of one acre---Identity of accused in the dark hours of the night was not free from doubt---If the intention of accused was to bring the deceased to the place of incident for the commission of crime, they would have not waited for prosecution eye-witnesses to witness the occurrence---Attending circumstances had created doubt about the veracity of the prosecution story, benefit of which resolved in favour of accused---Appeal was allowed in circumstances and accused were acquitted by setting aside the conviction and sentences recorded by the Trial Court.

Muhammad Naeem Inayat v. The State 2010 SCMR 1054 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statement of victim recorded by Investigating Officer--- Evidentiary value---Allegation against the accused was that he committed murder of the son of complainant---Investigating Officer had allegedly recorded the statement of victim in the hospital after getting permission from the medical officer---Prosecution did not produce any document showing that the said medical officer had opined that victim was capable to record his statement---Statement of victim was not endorsed or attested by the Medical Officer---Such circumstances had suggested that victim was not in a position to make statement in injured condition---Such statement was not reliable rather created doubt about the veracity of prosecution version---Appeal was allowed in circumstances and accused were acquitted by setting aside the conviction and sentences recorded by the Trial Court.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Allegation against the accused was that he committed murder of the son of complainant---Prosecution had alleged the motive that accused was involved in water theft of canal---Complainant had repeatedly restrained the accused not to indulge in such activity but of no avail---Complainant allegedly moved applications with the irrigation department against the accused---Accused allegedly committed the murder of son of complainant for such actions of complainant---Prosecution had not produced copy of any application moved by the complainant against the accused in the irrigation department---No witness from the irrigation department had been produced by the prosecution to prove the alleged motive---Motive was not proved in circumstances---Appeal was allowed and accused were acquitted by setting aside the conviction and sentences recorded by the Trial Court.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Reliance---Allegation against the accused was that he committed murder of the son of complainant by firing pistol shot---Weapon of offence was recovered on the disclosure of accused from his "Ehata Muwashian" after seven days of his arrest---Crime empties were also recovered from the place of occurrence and were sent to the Forensic Science Laboratory for analysis---Report of Forensic Science Laboratory had shown that crime empties allegedly recovered from the place of occurrence were received in the office of Forensic Science Laboratory after the period of more than five months of the recovery of weapon of offence and arrest of accused---Possibility of planting the crime empties before their dispatch to the Agency could not be ruled out---Positive report of Forensic Science Laboratory being not believable, was discarded in circumstances---Appeal was allowed and accused were acquitted by setting aside the conviction and sentences recorded by the trial Court.

Masood Aslam alias Shada v. The State 2002 PCr.LJ 1603 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Not necessary that there should be many circumstances creating doubts, one circumstance which created reasonable doubt in the prudent mind about the guilt of the accused was sufficient to give benefit of doubt, not as matter of grace or concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Sardar Khurram Latif Khan Khosa for Appellant No.2.

Hassan Iftikhar and Malik Muhammad Shahzad Awan for Appellant No.1.

Munir Ahmad Sial, DPG for the State.

2017 P Cr. L J 246

[Lahore]

Before Syed Shahbaz Ali Rizvi and Mirza Viqas Rauf, JJ

SARFRAZ alias SAFRI and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 20-J of 2013, 2117 of 2012, Criminal Revision No. 143 of 2013 and Murder Reference No. 16 of 2013, heard on 17th May, 2016.

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

----Ss. 302, 324, 353, 186, 412, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions, dishonestly receiving property stolen in the commission of a dacoity, rioting armed with deadly weapon and unlawfuly assembly, common object---Appreciation of evidence---Benefit of doubt---Allegation against accused persons was that they committed dacoity and made firing on police party when were encircled by the police and also committed murder of police official---Prosecution produced as many as four witnesses to prove the guilt of accused---One prosecution witness did not utter even a single word about the accused---Other prosecution witness had stated that arrested accused had disclosed the name of co-accused---Said circumstances had indicated that accused was previously not known to the prosecution witnesses but the FIR was lodged on the day of occurrence and accused was specifically named as one of the accused---Complainant and injured also appeared as prosecution witnesses and implicated the accused---Injured had joined the investigation after 26/27 days of the occurrence when for the first time, his statement was recorded by the Investigating Officer---Prosecution failed to bring on record any material to the effect that injured/prosecution witness was unable to record his statement during the said period---Said prosecution witness had introduced certain material facts which were not available in his statement before the police---Same was the position of complainant---Circumstances suggested that evidence of complainant and injured person were the outcome of padding and dishonest improvement---No identification parade was conducted in order to affirm the identity of accused---Appeal was allowed in circumstances and accused were acquitted from the charges by extending benefit of doubt.

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

----Ss. 302, 324, 353, 186, 412, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions, dishonestly receiving property stolen in the commission of a dacoity, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object---Appreciation of evidence---Benefit of doubt---Medial evidence was not in line with the ocular account---Said circumstance created doubt about the veracity of prosecution case, benefit of which resolved in favour of accused---Appeal was allowed in circumstances and accused were acquitted from the charges by extending benefit of doubt.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Sabir Ali and Fauji v. The State 2011 SCMR 563; Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 and Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 rel.

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

----Ss. 302, 324, 353, 186, 412, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions, dishonestly receiving property stolen in the commission of a dacoity, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object---Appreciation of evidence---Benefit of doubt---Withholding of material evidence---Prosecution did not examine a witness who was accompanied by the injured at the time of alleged occurrence---Prosecution did not produce vehicle used in the occurrence---No plausible reason had shown by the prosecution about withholding of material evidence---Negative inference, in circumstances, could be drawn against the prosecution on account of non-examining the said prosecution witness---Attending circumstances had created doubt about the veracity of prosecution story, benefit of which resolved in favour of accused---Appeal was allowed in circumstances and accused were acquitted from the charges by extending benefit of doubt.

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

----Ss. 302, 324, 353, 186, 412, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions, dishonestly receiving property stolen in the commission of a dacoity, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Reliance---Record had shown that weapon of offence (pistol) and crime empties were sent to the Forensic Science Laboratory for analysis after the lapse of almost two years---Report of Forensic Science Laboratory, in circumstances, was not believable and same was inconsequential---Appeal was allowed in circumstances and accused were acquitted from the charges by extending benefit of doubt.

Usman Naseem and Munir Hussain Bhatti for Appellant No.1 (in Crl. Appeal No. 20-J of 2013).

Imtiaz Hussain Bhatti and Malik Shahzad Awan, defence counsel for Appellants (in Crl. Appeal No.2117 of 2012).

Miss Maleeha Athar for the Complainant.

Muhammad Naseem Akhtar, Deputy District Public Prosecutor for the State.

2017 P Cr. L J 280

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi, JJ

SARFRAZ MASIH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 185-J and Murder Reference No. 16 of 2012, heard on 8th November, 2016.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses in not saving the deceased at the time of occurrence---Presumption---Unseen incident---Effect---Accused was alleged to have stabbed the deceased repeatedly with a knife which resulted in his death---Crime report revealed that besides the complainant, occurrence was witnessed by three prosecution witnesses---Accused was armed only with a knife and except raising lalkara to the deceased, he had not extended threats to any of the prosecution witnesses---None of the prosecution witnesses had even made any attempt to rescue the deceased from the clutches of the accused---Passive conduct of the prosecution witnesses at the scene of occurrence reflected adverse to the narrated prosecution story---Unnatural behaviour of the prosecution witnesses indicated their non-presence at the place of occurrence---Attending circumstances created reasonable doubt about the veracity of prosecution story and also had suggested that prosecution version with regard to ocular account was tainted, not inspiring confidence and result of due deliberations and consultations---Appeal was allowed and accused was acquitted of the charge by setting-aside the conviction and sentences recorded by the Trial Court.

Liaqat Ali v. The State 2008 SCMR 95; Ali Sher v. The State 2015 SCMR 142 and Pathan v. The State 2015 SCMR 315 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive, not proved---Prosecution had explained the motive that two years prior to the occurrence, accused had inflicted injuries upon the deceased---Criminal case was registered against the accused---Deceased made statement against the accused at the relevant time---Accused was convicted on account of evidence made by the deceased---Neither copy of the FIR was brought on record nor the judgment of conviction was produced either during the course of investigation or during the course of trial---Nothing was available on record to supplement the motive part of the case---Motive once alleged, it was incumbent upon the prosecution to prove the same---Prosecution in case of failure to prove the motive would suffer---Attending circumstances had cast doubt about the motive---Appeal was allowed and accused was acquitted of the charge by setting aside the conviction and sentences recorded by the Trial Court.

Noor Muhammad's case 2010 SCMR 97 rel.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence--- Post-mortem examination---Delay---Presumption---Post-mortem examination of the deceased was conducted after elapse of 24 hours---Delay in post-mortem examination had created suspicion regarding the promptness and genuineness of the crime report, benefit of which resolved in favour of accused---Appeal was allowed and accused was acquitted of the charge by setting aside the conviction and sentences recorded by Trial Court.

Irshad Ahmed v. The State 2011 SCMR 1190 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence--- Recovery of weapon of offence---Reliance---Weapon of offence (knife) was recovered after 16 days of the occurrence from open field of paddy crops, which was accessible to general public---Said recovery had become inconsequential and straightway hit the authenticity of the report of Chemical Examiner and Serologist---Recovery of weapon of offence was deemed to be corroborative in nature and was used for support of direct evidence---Direct evidence had been disbelieved in the case, therefore, it would not be safe to maintain conviction on confirmatory evidence---Appeal was allowed and accused was acquitted by setting aside the conviction and sentences recorded by the Trial Court.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(e) Criminal trial---

----Benefit of doubt---Not necessary that there should be many circumstances creating doubt---One circumstance which created reasonable doubt in the veracity of the prosecution version was sufficient for the purpose, not as a matter of grace rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 and Arif Hussain and another v. The State 1983 SCMR 428 rel.

Danyal Ijaz Chadhar for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Mian Pervaiz Hussain for the Complainant.

2017 P Cr. L J 306

[Lahore (Rawalpindi Bench)]

Before Ibad ur Rehman Lodhi, J

GHULAM ALI ASGHAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 29 of 2013, decided on 18th December, 2015.

Penal Code (XLV of 1860)---

----S. 295-A---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs---Appreciation of evidence---Person who reported the matter to Police was not a direct witness of what was allegedly uttered by accused---One of prosecution witnesses was a professional driver; and the other one had no basic knowledge of religious teaching---Police Inspector, who started investigation statedly after consultation of some Ulema gave final verdict as to the guilt of accused, but neither any of the religious scholar, who was consulted by the Police, had been named, nor any one was produced as a witness---Even any opinion of any religious scholar, had not been made part of the record---Offence under S.295-A, P.P.C., was not constituted, even in view of the statements of the prosecution witnesses---Prosecution, had failed to bring home guilt to accused on the charge levelled against him---Trial Court, ignored the facts and failed to confront the charge framed under S. 295-A, P.P.C., to the accused and convicted the accused without there being any corroborative and confidence inspiring evidence available on record---Conviction and sentence recorded by the Trial Court against accused under S.295-A, P.P.C., was not sustainable which was set aside and accused was ordered to be set at liberty, in circumstances.

Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 ref.

Malik Nadeem Iqbal for Appellant.

Mohammad Waqas Anwar, Deputy Prosecutor-General for the State.

Malik Waheed Anjum for Respondent No.2.

2017 P Cr. L J 323

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.2005 of 2014, heard on 18th January, 2016.

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

----S. 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotic drugs---Appreciation of evidence---Statements of the prosecution witnesses were contradictory regarding recovery and sealing of the recovered 'Charas Garda' at the spot---Except the bare opinion that the sealed parcel contained Charas, nothing existed in the analysis report that the Charas was Pukhta or Garda---Prosecution had failed to prove that the recovered Charas was Garda---Prosecution was under the burden to establish/prove by cogent evidence that Charas Garda had been recovered from the possession of the accused---Important link evidence to connect the accused with the Charas Garda recovered from polythene bag wrapped in old clothes was missing; the polythene bag and the old clothes had not been brought on record---Prosecution witness had deposed that Shalwar qameez was lying in the said shopping bag, but the same had not been taken into possession---Trial court had committed grave illegality in convicting the accused without any legal evidence worthy of credence---Appeal against conviction was allowed accordingly.

Maula Jan v. The State 2014 SCMR 862 rel.

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

----S. 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotic drugs---Investigation and evidence for the offence involves highly technical procedure and calls for strict compliance of the procedure and rules made in that regard.

Maula Jan v. The State 2014 SCMR 862 rel.

Ch. Waseem Nabi Ghumman for Appellant.

Muhammad Akhlaq, Deputy Prosecutor-General for the State.

2017 P Cr. L J 349

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

STATE through Deputy Director (Law), Regional Directorate Anti-Narcotics Force---Appellant

Versus

ALI ASGHAR---Respondent

Criminal Appeal No. 553 of 2009, heard on 12th January, 2016.

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

----Ss. 9(c) & 48---Criminal Procedure Code (V of 1898), S. 417---Possession, import or export, trafficking or financing trafficking of narcotics---Appeal against acquittal---Appreciation of evidence---Case property/recovered substances, safe custody of---Principles---Nothing was available on record to establish as to in whose presence the case property had been de-sealed and second sample (as directed by the court) obtained for sending the same to Chemical Examiner---Mere deposition of the prosecution witnesses was not sufficient to prove the safe custody of the case property---Prosecution had not produced the police official before the Trial Court, through whom said second sample of substance had been sent to the Chemical Examiner, which falsified the prosecution case---In absence of any concrete evidence that the recovered substance had been kept in safe custody or that samples had been taken from the recovered substance and transmitted to the office of Chemical Examiner without the same being tampered with or replaced during the transit, the prosecution case could not be said to have been proved---Report of Chemical Examiner did not carry any weight especially in absence of any evidence with regard to the safe custody of recovered substance and safe transmission of the samples to the office of Chemical Examiner---Trial Court had rightly acquitted the accused giving him the benefit of the doubt---Appeal against acquittal was dismissed accordingly.

Ikramullah and others v. The State 2015 SCMR 1002 and Mst. Fatima v. The State 2002 PCr.LJ 32 rel.

(b) Criminal trial---

----Prosecution is under heavy burden to prove the charge against the accused beyond any shadow of doubt.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 417----Appeal against acquittal---Scope---Appeal against acquittal has distinctive feature and approach---Presumption of innocence is attached in appeal against acquittal---Court can only interfere in an order of acquittal when it is found on the face that the same is capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or the same is artificial and leads to gross miscarriage of justice---Substantial weight should be given to the findings of lower court while taking into consideration the judgment of acquittal.

Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220; Feroze Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424 and Muhammad Ijaz Ahmed v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 rel.

(d) Criminal trial---

----Benefit of doubt----Scope---For giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubt---Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(e) Criminal trial---

----Benefit of doubt----Principles---Benefit of doubt must go to the accused and the court would never come to rescue the prosecution to fill the lacuna appearing in its evidence, as the same would be against the principles of dispensation of criminal justice.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Tariq Sheikh for the State.

Khalil-ur-Rehman for Respondent.

2017 P Cr. L J 359

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

ASHFAQUE alias SHAKA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 168-J of 2013 and Murder Reference No. 202 of 2013, heard on 29th November, 2016.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Allegation against the accused was that he made fire shot with .12-bore carbine, which hit on abdomen and chest of deceased---Ocular account was furnished by complainant and a witness---Statement of said witnesses corroborated each other on all material aspects of the case---Evidence of said witnesses could not be shaken despite lengthy cross-examination---Said witnesses had established their presence at the place of occurrence at the time of occurrence---Evidence of eye witnesses was straightforward, trust-worthy and confidence inspiring---Post-mortem report of deceased showed that Medical Officer had observed firearm injuries on the person of deceased which were sufficient to cause death in ordinary course of nature---Circumstances established that medical evidence had fully supported the ocular account furnished by witnesses---Motive was not proved---Mitigating circumstances---Co-accused had been acquitted---Conviction of accused was maintained and sentence from death was altered to imprisonment for life, in circumstances.

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

----Ss. 302(b) 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, common intention---Appreciation of evidence---Sentence, reduction in---Motive, not proved---Effect---Motive as alleged by complainant was that in the morning of the day of occurrence, some altercation took place between accused and complainant---Accused and co-accused had threatened the complainant to teach a lesson of the altercation---Circumstances showed that accused had no motive against the deceased to commit her murder---Motive had been attributed to accused against complainant who was present at the time of occurrence but was not targeted by the accused---Said motive as alleged by the complainant was not actual motive of the occurrence---Prosecution therefore, failed to prove motive against the accused---Failure of prosecution in proving motive would constitute mitigating circumstances for reducing the sentence of death to the imprisonment for life---Conviction was maintained, sentence of accused from death to imprisonment for life was altered in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence from accused---Reliance---Recovery of .12-bore carbine at the instance of accused was effected---Report of Forensic Science Laboratory showed that crime empties recovered from the place of occurrence was received in the office after 21 days of arrest of accused and after 10 days of the recovery of .12-bore carbine---Possibility, in circumstances, could not be ruled out that crime empties had been manufactured before their dispatch to Forensic Science Laboratory to obtain positive report---Such report could not be relied---Conviction was maintained but sentence of accused from death to imprisonment for life was altered in circumstances.

Masood Aslam alias Shada v. The State 2002 PCr.LJ 1603 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Positive report of Forensic Science Laboratory had been discarded and recovery of .12-bore carbine had become inconsequential---Motive in had not been proved---As to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into incident was not determinable--- Mitigating circumstances--- Death sentence awarded to the accused was therefore, altered to imprisonment for life.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Zafar Iqbal and others v. The State 2014 SCMR 1227 rel.

Barrister Danyal Ijaz Chadhar for Appellant.

Syed Riaz ud Din for the Complainant.

Munir Ahmad Sial, DPG for the State.

2017 P Cr. L J 400

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch. JJ

IMRAN ISHAQUE and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 173-J, 894 of 2013 and Murder Reference No.193 of 2013, heard on 29th November, 2016.

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

----Ss. 302, 201 & 34--Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of deceased---No person from the prosecution side claimed to be the eye-witness of the occurrence---Accused was not named in the FIR---Motive of the occurrence had not been attributed to accused---All the said factors made the case of prosecution doubtful---Prosecution had failed to prove its case against accused beyond any reasonable doubt---Accused was acquitted by setting aside his conviction and sentence recorded by Trial Court.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused was charged for the murder of deceased---Prosecution witnesses had stated that they had seen the deceased in the company of accused and co-accused (since acquitted) and on asking of deceased, they went back to their houses to sleep, leaving the deceased in the odd hours of night in the company of accused persons---Story as alleged by the said prosecution witnesses was neither plausible nor believable---Even otherwise, last seen evidence had been disbelieved to the extent of accused persons (since acquitted) and the same could not be believed to the extent of accused---Last seen evidence was a weak type of evidence unless corroborated by some other piece of evidence, which was conspicuously missing in the present case---Such corroborative evidence could be procured at any time during the investigation when direct evidence was not available---Statement of witnesses of last seen evidence was unnatural, who went to sleep while leaving the deceased in the odd hours of the night in the company of accused persons---Accused was acquitted in circumstances by setting aside his conviction and sentence recorded by Trial Court.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

(c) Criminal trial---

---Last seen evidence--- Scope--- Last seen evidence was a weak type of evidence unless corroborated with some other piece of evidence.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence and common intention---Appreciation of evidence---Prosecution had alleged the motive against co-accused (since acquitted) and no motive was attributed to the accused---Accused was acquitted in circumstances by setting aside his conviction and sentence recorded by Trial Court.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Two blood-stained brick-pieces, five pieces of broken glass and scrapper were recovered from the residential house of accused on his disclosure---Positive report of serologist pertaining to two pieces of bricks and five pieces of bottle/glass and "Nehla" iron found stained with human blood in absence of report regarding blood group were inconsequential---Accused was acquitted by setting aside his conviction and sentence recorded by Trial Court.

(f) Criminal trial---

----Evidence---Corroboration---Principle---One tainted piece of evidence could not corroborate another piece of tainted evidence.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(g) Criminal trial---

----Benefit of doubt---Scope---Not necessary that there should be many circumstances creating doubt---If there was a circumstance, which created reasonable doubt in the prudent mind about the guilt of accused, he would be entitled to its benefit, not as a matter of grace or concession but as of right---Accused was acquitted by setting aside conviction and sentence recorded by Trial Court in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Saroop Ijaz for Appellants.

Fawad Akram Sufi for Respondents/Complainant.

Nisar Ahmad Virk, DDPP for the State.

2017 P Cr. L J 440

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi, J

Mian FAIZ RASOOL---Petitioner

Versus

The STATE and 2 others---Respondents

W.P. No.18516 of 2015, decided on 29th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 498, 155, 173, 177 & 190----Penal Code (XLV of 1860), Ss. 467, 468, 471, 420 & 409---Prevention of Corruption Act (II of 1947), S. 5---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---Bail before arrest, refusal of---Accused was alleged to have an electricity connection installed in connivance with the WAPDA officials on the basis of bogus ownership documents---Accused filed an application to the Special Judge (Central) for anticipatory bail on the ground that the complainant had no nexus with the plot in dispute---Special Judge (Central), while allowing the application, observed that the case was triable by an ordinary court and therefore ordered the Investigating Officer to delete the offence under S. 409, P.P.C. and S. 5 of Prevention of Corruption Act, 1947---Question before the High Court was whether the Special Judge (Central) had the jurisdiction to consider the point of its jurisdiction to entertain pre-arrest bail application at the stage when it was going to decide the same---Court could take cognizance of a case at any stage, including the stage when the bail application was under consideration of the court---Material available before the Special Judge (Central), when it had proceeded to decide the bail, was to be seen---Investigating Agency, at that stage, was still busy in sorting out the true facts of the case and had not opined that the offence was not triable by the Special Judge or the offences were not made out---Prosecution having no evidence to make such an opinion, at bail stage, the court could not take cognizance of the case---Court below had found that the offence under S. 5 of Prevention of Corruption Act, 1947 and S. 409, P.P.C. were not made out, which observation had been given in ignorance of the fact that the Investigating Officer had found the Sub-Divisional Officer and Line Superintendent of WAPDA having been involved in granting electricity connection at the premises of the accused; even otherwise, said finding of the court amounted to decision of the whole case, at the stage when no challan was before it---Sufficient material was available with the prosecution to bring its case within the jurisdiction of Special Judge (Central)---Special Court had no jurisdiction to order for deletion or addition of offence and sending the aggrieved person to the ordinary court, unless and until final report under S. 173, Cr.P.C had been submitted in the court---Court had been vested with the powers to order deletion or addition of the offence, at the stage when it framed charge against the persons concerned and not before that---Prosecution agency, under Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, enjoyed the powers to delete or add the offence, according to the facts and evidence collected by the agency, before submitting the report under S. 173, Cr.P.C to the court---Impugned order of the court below was, therefore, not sustainable in the eye of law---High Court, declaring the impugned order as having no legal consequence, held that court might exercise such jurisdiction when final report was submitted before it and when it proceeded to frame the charge against the culprit---Constitutional petition was allowed in circumstances.

Allah Din and 18 others v. The State and another 1994 SCMR 717; Abdur Rehman v. Ghazan and 5 others 2005 MLD 954 and Asrar Ahmed Khan v. Special Judge, Anti-Terrorism Court, Faisalabad and others 2012 YLR 1938 rel.

Ch. Shakir Ali for Petitioner.

2017 P Cr. L J 452

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

MUHAMMAD IMRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.475 of 2010, heard on 4th December, 2015.

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

----S.376---Rape---Appreciation of evidence---Enmity/political rivalry---Sole statement of victim---Evidentiary value---Marks of violence not necessary to prove rape---Victim of rape had fully implicated the accused---Defence could not extract anything favourable during cross-examination of the victim---Accused had claimed his involvement in the case due to political rivalry, but such stance was beyond imagination that the victim and his real brother would involve the accused due to enmity at the cost of their honour---One would not sacrify his honour to achieve the goal of causing harm to his opponent by implicating him in a frivolous case---Accused had failed to prove that the brother of the victim was candidate himself or was vocal supporter of any political party; rather, the brother had been proved to be a poor man serving in a hotel---Sole testimony of the victim was enough for conviction, if the same was trustworthy, surefooted, irrefutable and confidence inspiring---Statement of the prosecutrix/victim was well corroborated with the medical history brought on record by a doctor, who had examined the victim and prepared the Medico-legal Report---Report of the Chemical Examiner showed that sexual assault had taken place with the victim---Statement of the victim was straightforward, and the same had narrated the entire incident in a very innocent and natural manner, and the accused had failed to establish any exaggeration therein---Marks of violence were not necessary to prove the factum of rape---Appeal against conviction was dismissed accordingly.

Ghulam Sarwar v. The State PLD 1984 SC 218 rel.

(b) Criminal trial---

----Appreciation of evidence---Corroboration was not a rule of law but that of prudence.

Mukhtar Ahmad Gondal, Defence counsel for Appellant.

Naveed Ahmed Warraich, DDPP with Ch. Fayyaz, SI for the State.

Nemo for the Complainant.

2017 P Cr. L J 459

[Lahore]

Before Shahid Hameed Dar, J

The STATE through Prosecutor General Punjab---Appellant

Versus

KHALID RASHEED KAMBHO---Respondent

Criminal Appeal No.1181 of 2013, decided on 9th November, 2015.

Penal Code (XLV of 1860)---

----S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), Ss. 417 & 249-A---Illegal gratification---Appreciation of evidence---Appeal against acquittal---Complainant, resiling of---Evidence of Magistrate---Trial Court acquitted accused in exercise of jurisdiction under S. 249-A, Cr.P.C.---Validity---When complainant was cross examined by accused he deposed about his written application as having been presented by him due to some misunderstanding---Complainant stated that accused neither demanded nor received any bribe from him and such was evidence of complainant who was the sole victim of the crime---Evidence of Magistrate, who allegedly conducted raid and caught accused red-handed was in possession of tainted currency notes, could have been at the most corroboratory in nature, if complainant had supported prosecution case---Trial Court dealing with such cases was adequately empowered by statute to acquit accused at any stage of trial under S. 249-A, Cr.P.C., once it had formulated the opinion that further proceedings of trial, because of the attending facts, would be meaningless as to awarding conviction or sentence to accused---Trial Court committed no illegality and had rightly observed that rest of prosecution witnesses were of formal nature and prosecution case would not advance in case they were summoned and recorded, after the complainant had disowned his earlier stance and pushed the case in cul-de-sac---High Court observed that it would be sheer wastage of time and energy if Trial Court proceeded with trial of accused, which would lead to any direction but to his conviction in the trial---Order or judgment of acquittal brought double presumption of innocence to accused after initial one, that everyone innocent till proved otherwise---High Court declined to interfere in the order passed by Trial Court as no material existed---Appeal was dismissed in circumstances.

2017 P Cr. L J 474

[Lahore (Multan Bench)]

Before Hafiz Shahid Nadeem Kahloon, J

SAJJAD SERHANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.318 of 2015, heard on 12th January, 2016.

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

----S. 7---Age, determination of---Requirements---Duty of court---Ossification test not considered---Effect---Section 7 of Juvenile Justice System Ordinance, 2000, provided that while determination of age, if a question arose as to whether an accused before the court was a child for the purpose of the Ordinance, then the court would record a finding after such inquiry which would include a medical report for determination of age of the child---Mode for determination of age of the accused, in the present case, had not been rightly followed by the Trial Court by omitting to consider the medical report---Ossification test showed that the accused was 18 to 20 years of age---Trial court had to give due weight to the true facts of the case and then by adopting proper mode must have observed the sanctity attached to the ossification report as well as the material in the shape of documentary evidence submitted by the parties---Accused, as reflected from the date of birth mentioned in his CNIC, was more than 20 years of age at the time of the occurrence; however, since the accused had contended that due to poverty he had got issued the said CNIC in order to get the livelihood for his family, therefore, the Trial Court should have taken note of the entire scenario of the case and then should have arrived at a just and right conclusion---Trial court had not properly looked into the School Leaving Certificate of the accused and had negated the ossification report without dilating upon the true facts and passed the impugned order in mechanical and stereo type way---In criminal dispensation of justice, the benefit of doubt is extendible at all stages of inquiry and trial---Accused was, therefore, held to be entitled to the benefit of one year's margin and was declared as juvenile as such and his case was ordered to be sent to the juvenile court---Revision was allowed accordingly.

Umar Hayat v. Jahangir and others 2002 SCMR 629; Sultan Ahmad v. ASJ and others PLD 2004 SC 758; Om Prakash v. State of Rajhastan and others 2012 SCMR 1400; Shehar Yar alias Shahri v. The State and others 2006 YLR 10; Malik Sajjad Ahmad v. The State and others 2006 PCr.LJ 211; Afsar Zamin v. The State and others PLD 2002 Kar. 18; Sadam v. The State and others 2014 PCr.LJ 542; Muhammad Zubiar v. The State 2010 SCMR 182; Muhammad Anwar v. M. Sufyan and another 2009 SCMR 1073; Mst. Shabana Kausar v. Farhan Ahmad 2003 PCr.LJ 1507 and Muhammad Basharat v. The State and 4 others PLD 2007 Lah. 392 ref.

Yousaf v. The State and others 1975 PCr.LJ 936 rel.

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

----S. 7--- Age, determination of--- Ossification test/report of Radiologist---Scope---Best test for determination of the age is ossification test and report of Radiologist, because there is rare chance of wrong decision as the same are based upon the result given by highly technical and advance equipments. [p. 478] C

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

----Preamble----Interpretation---Juvenile Justice System Ordinance, 2000, being beneficial in its scope, is to be interpreted liberally, and when two views are possible, one favouring the accused has to be taken particularly regarding the juvenility inasmuch as the same can be proved to be helpful for his rehabilitation on account of aid of the Ordinance.

Muhammad Usman Sharif Khosa for Petitioner.

Shaukat Ali Ghauri, A.P.G. for the State.

Syed Chiragh Din for the Complainant.

2017 P Cr. L J 491

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

HASSAN ALI and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 907, 906 of 2013 and Murder Reference No. 392 of 2014, heard on 7th December, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about one hour in lodging FIR---Place of occurrence was at a distance of five kilometers from the police station---FIR was chalked out within fifty five minutes after the incident---Circumstances established that matter was reported to the police with due promptitude, which ruled out the chances of fabrication and consultation on the part of complainant.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported medical evidence---Allegations against the accused persons were that accused party made straight firing with their .30-bore pistols, which hit on different parts of the body of deceased---Ocular account was furnished by complainant and the witness; no material discrepancy in their statement was found---Statement of said witnesses corroborated each other on all material aspects of the case and despite lengthy cross-examination, nothing beneficial to the defence could be extracted---Evidence of eye-witnesses was quite natural, trustworthy and confidence inspiring---No chance of misidentification of the accused persons was available as the occurrence took place in daylight---Case of prosecution was that one fire landed on right bicep and another fire landed on right flank of the deceased---Report of post-mortem of deceased also showed two entry wounds on the person of deceased---Circumstances established that ocular account to the extent of accused persons was fully supported by medical evidence---Conviction was maintained, sentence of accused was altered from death to imprisonment for life in circumstances---Conviction and sentence of co-accused were maintained in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Ocular account furnished by witnesses having relationship with the deceased---Reliance---Scope---Allegations against the accused persons were that accused party made straight firing with their .30-bore pistols, which hit on different parts of the body of deceased---Ocular account furnished by two witnesses who were relatives of the deceased---Testimonies of both said eye-witnesses could not be discarded merely because of their relationship with the deceased---Conviction was maintained, sentence of accused was altered from death to imprisonment for life in circumstances and conviction and sentences awarded to the co-accused were maintained.

Haji v. The State 2010 SCMR 650 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Effect---Motive as alleged in FIR was that there was a dispute of property between one of the accused and deceased and due to that grudge, accused and co-accused had committed murder of the deceased---Prosecution had changed the motive part of the occurrence in the private complaint as well as before the Trial Court---Prosecution therefore, failed to prove motive against the accused---Failure of prosecution in proving motive would constitute mitigating circumstance for reducing the sentence of death to the imprisonment for life---Conviction was maintained, sentence of accused was altered from death to imprisonment for life in circumstances and conviction and sentences awarded to the co-accused were maintained.

(e) Criminal trial---

----Motive---Scope---Motive was a double edged weapon; on one side, it could be a reason for the commission of crime while on the other side, it could be a reason for false involvement of accused.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances----Motive against accused had not been proved---Recovery of pistol .30-bore at the instance of accused was inconsequential---Non-proving of motive could be taken as a mitigating circumstance and benefit in such context could be given to the accused---Conviction was maintained, sentence of accused was altered from death to imprisonment for life and conviction and sentences awarded to the co-accused were maintained.

Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Ahmad v. The State 2015 SCMR 993; Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Recovery of .30-bore pistol at the instance of accused was immaterial because no crime empty was recovered from the spot---Report of Forensic Science Laboratory was not available on the record---Conviction was maintained, sentence of accused was altered from death to imprisonment for life in circumstances and conviction and sentences awarded to the co-accused were maintained.

Shahid Azeem for Appellant No.1.

Yahya Tariq Cheema and Ali Muhammad Zahid for Appellant No.2.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Malik Rab Nawaz for the Complainant.

2017 P Cr. L J 524

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

Malik MUHAMMAD USMAN---Petitioner

Versus

JUSTICE OF PEACE/ASJ, CHINIOT and others---Respondents

Writ Petition No. 32714 of 2016, heard on 6th December, 2016.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 337-A(ii)---Application for registration of case against accused persons was dismissed by Ex-Officio Justice of Peace---Contention of applicant corroborated the statement of the injured person and medico-legal examination certificate---Said report showed the availability of bone exposed injury on left side of head of injured person besides other three injuries, which revealed commission of cognizable offence---Record further showed that prior to approaching the Ex-Officio Justice of Peace, applicant attempted to get his grievance redressed by the police authorities---Order of dismissal of application by Ex-Officio Justice of Peace without keeping into consideration the legal aspects involved, was not maintainable being perverse---District Police Officer was directed to record the statement of petitioner and proceed strictly in accordance with law---Constitutional petition was allowed in circumstances.

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

----Ss. 154 & 155---First information report---Scope---On receiving information regarding commission of offence, Station House Officer was under legal obligation to proceed under Ss. 154/155, Cr.P.C. according to the narration and facts of the information furnished to him.

Malik Rab Nawaz for Petitioner.

Amir Younas Raja for Respondents Nos. 4 to 9.

Ch. Iftikhar Iqbal Ahmad, Assistant Advocate-General for the State.

2017 P Cr. L J 558

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD USMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12601-B of 2015, decided on 9th December, 2015.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 337-A (ii) & 337-L(2), 148 & 149---Qatl-i-amd; attempt to commit qatl-i-amd; shajjah-i-mudihah; hurt; rioting, armed with deadly weapon; common object---Bail, grant of---Further inquiry---Injuries attributed to the accused had been declared as falling under Ss.337-A(ii) & 337-L(2), P.P.C. by the doctor---Co-accused before the Court, who was present at the spot empty handed, along with the accused, had been alleged to have given kicks and fist blows to the deceased---Doctor, during the postmortem, however, had observed only a contusion mark on front of the right chest of the deceased, and no other mark of violence had been observed on the dead body---Injury that had caused death of the deceased would be determined after recording of evidence by the Trial Court---Vicarious liability of the accused or sharing of common intention with co-accused in the commission of the offence also would be determined by the trial court---Question as to whether the case fell either under S. 302, P.P.C. or S. 315, P.P.C., would also be determined by the Trial Court at an appropriate stage---Investigation of the case was already complete, and the accused persons were no more required for further investigation---Accused persons had been behind the bars without any fruitful progress in conclusion of their trial---Case of the accused persons was, therefore, one 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---Principles----Mere heinousness of offence is no ground to refuse bail to the accused, who otherwise becomes entitled to the bail.

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

----S. 497---Bail---Principles---Benefit of the slightest doubt arising out of prosecution case has to be given to the accused, not as a matter of grace but as a matter of right, even at bail stage.

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

----S. 497---Bail---Principles---No one can be kept in jail for an indefinite period, as speedy trial is the right of an accused.

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

----S. 497---Bail---Principle---Only tentative assessment is required at bail stage.

Malik Ghulam Abbas Nissoana and Asghar Ali for Petitioner (in Cr. M. No.12601-B of 2015).

Muhammad Ijaz Khan for Petitioner (in Cr. M. No.14319-B of 2015).

2017 P Cr. L J 576

[Lahore]

Before Mazhar Iqbal Sidhu and Malik Shahzad Ahmad Khan, JJ

IZHAR SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal M. No.552-B of 2016, decided on 7th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession, import or export, trafficking or financing of trafficking---Bail, grant of---Charas weighing 2015 grams was alleged to have been recovered from the accused---Accused, as mentioned in the FIR, had received an injury on his right knee joint and was being treated by the police, which background reflected upon the veracity of the whole prosecution case---High Court made certain observations about the corrupt practices being carried on by the police and poor quality of investigation in criminal cases---Bail application was allowed accordingly.

Naveed Ahmad Khawaja for Petitioner.

Muhammad Akram Tahir, DDPP for the State.

2017 P Cr. L J 586

[Lahore]

Before Abdul Sami Khan, J

KALEEM ULLAH alias BHOLA and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.7 of 2010 and Criminal Revision No. 1104 of 2009, heard on 11th April, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd; common intention---Appreciation of evidence---Last-seen evidence---Extra-judicial confession---Exact time of committing murder of the deceased had not been mentioned anywhere in the documents available on the record---Dead body of the deceased had been recovered at the midday from a place which was admittedly a busy place, but nobody had noted any sound of firing at the spot nor anybody had seen the culprits snatching the motorcycle or throwing his dead body at that place---Prosecution witnesses had deliberately concealed the exact time of death of the deceased to cover the delay in lodging the FIR and conducting the post-mortem examination---Medical doctor failed to bring on record the time when the dead body of the deceased had been brought to the hospital---FIR in question had not been registered at the time mentioned therein, rather, time had been consumed to consult and deliberate the matter---No direct evidence/eyewitness was available with the prosecution to prove that the accused had committed the murder of the deceased, and the case was one of blind murder---Prosecution case was based on the last seen evidence, extra-judicial confession and recovery of weapon of offence---Complainant had stated that his deceased son had gone with the accused with his own free will, and he had not shown any suspicion upon the accused at that time, nor had he shown any suspicion on the accused when he had met the accused on the next morning---Investigating Officer had not arrested the accused even more than one month after he had been nominated in the FIR, and according to the record the accused had not gone underground to evade his arrest, which meant that nobody was sure that the accused had committed the murder of the deceased till the time he had been arrested---Investigating Officer had contradicted the statements of other witnesses as to time of reporting the occurrence to the police---Complainant and his deceased son had gone outside the house and the mother of the deceased had not accompanied them; thus she had not seen the accused taking away her deceased son with him on the motorcycle, and all that she had stated was hearsay evidence, the evidentiary value of which was nothing but zero---Last-seen evidence furnished by the mother and father of the deceased was not only contradictory to each other but the same was also contradictory with the statement of the Investigating Officer---Such type of last-seen evidence was not sufficient to be believed to record conviction of the accused---Last-seen evidence was weak type of evidence, which needed strong corroboration from independent corner but that was missing in the present case---Prosecution witness before whom the accused had allegedly made the extra-judicial confession, was the brother of the mother of the deceased and brother-in-law of the complainant; thus, he was an interested witness---Said prosecution witness had admitted that he had not tried to apprehend the accused after he had made the extra-judicial confession as to murder of his nephew, which unnatural conduct showed the falsehood of his statement---Other prosecution witness of alleged extra-judicial confession, being a relative of the complainant, was also an interested witness---Both the said witnesses had also admitted not to possess any influential portfolio to help the accused get pardon from the complainant---Prosecution, therefore, had manufactured the extra-judicial confession to strengthen its case against the accused---Investigating Officer had allegedly recovered the crime weapon along with the crime empties from the accused, but he had sent only the weapon to the Forensic Science Laboratory and had not sent the crime empties; therefore, there was no report of matching of the crime empties with the recovered pistol---Report of Forensic Science Laboratory was only to the extent of working condition of the recovered pistol---Recovery of the weapon, therefore, did not provide any support to the other pieces of the evidence---Clouds of doubt were looming large rendering the same to have been based on polluted evidence of the interested witnesses, who had been called upon at the belated stage to create evidence just to strengthen the prosecution case---High Court, setting aside the conviction, acquitted the accused---Appeal against the conviction was allowed accordingly.

2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 320 rel.

(b) Criminal trial---

----Circumstantial evidence----Requirements---In order to prove a case through circumstantial evidence in criminal cases, the chain of circumstances should be so strong or solid that one end should start right from the toe and the same should encircle a dense grip around the neck of the accused on the other side---Slight break in the chain of circumstances would definitely make the grip of the chain loose and also breaks the geometrical progression of the chain, especially when the same was built up on the basis of feeble or shaky evidence.

2009 SCMR 230 rel.

(c) Criminal trial---

----Benefit of doubt----Only one circumstance creating doubt is enough to acquit the accused.

2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(d) Criminal trial---

----Better to acquit ten guilty persons than to convict a single innocent person.

Mazhar Iqbal Gondal for Appellants.

Mrs. Nuzhat Bashir, Deputy Prosecutor General for the State.

Miss Saira Riaz for the Complainant.

2017 P Cr. L J 603

[Lahore]

Before Muhammad Anwaarul Haq, J

HAKIM ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 13648-B of 2016, decided on 12th January, 2017.

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

----S. 498---Penal Code (XLV of 1860), S. 462-J---Theft of electricity---Ad interim pre-arrest bail, recalling of---Accused was nominated in the FIR with the specific allegation of committing theft of electricity by establishing a direct connection with the main line---Said allegation found support from the statements of Lineman and Assistant Lineman recorded under S. 161, Cr.P.C.---Accused had only paid a portion of the detection bill calculated by the electricity department, and a huge amount was still outstanding against him---Even if accused had deposited the whole detection bill, it still was not a valid ground to confirm his ad interim pre-arrest bail---Offence under S. 462-J, P.P.C. was non-bailable---Accused was unable to establish any mala fide or malice on part of the electricity department or the police for falsely implicating him in the present case---Ad interim pre-arrest bail granted to accused was recalled in circumstances.

Sana Ullah v. State 2016 SCMR 1527 ref.

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

----S. 498---Penal Code (XLV of 1860), S. 462-J---Theft of electricity---Ad interim pre-arrest bail--- Scope--- Detection bill, payment of---Effect---Mere deposit of even whole detection bill after registration of a criminal case against an accused for theft of national resource (like electricity) could not be considered a valid ground for confirmation of his pre-arrest bail.

Sardar Wajahat Ali Dogar along with Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor General with Maqbool Hussain, ASI for the State.

2017 P Cr. L J 668

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ARSHAD MAHMOOD KHAN---Appellant

Versus

The STATE---Respondent

Cr. Appeal No. 1980 of 2012, decided on 7th March, 2016.

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

----S. 9(c)---Possession, import or export, trafficking or financing of narcotic drugs---Appreciation of evidence---Chemical Examiner's Report---Requirement and evidentiary value---Prosecution had failed to establish the safe custody of the recovered substance and the parcels of samples---Contradictions existed as to deposit of the samples and case property in the Malkhana--- Prosecution witnesses had made contradictory statements as to the nature, colour, shape and size of slabs of the recovered Charas Garda---Some of the prosecution witnesses had even stated the recovered substance to be heroin; whereas, the question put to the accused in his examination under S. 342, Cr.P.C. related specifically to Garda Charas and the Chemical Examiner's Report had also revealed the parcels of samples separated from the recovered substance to be Charas Garda---Contradictions in statements of the prosecution witnesses as to nature of the recovered substance, in absence of positive and material evidence, could not be regarded as minor and irrelevant---Report of the Chemical Examiner must disclose the procedure on which his opinion is based and the reason in support of the opinion---Report of the Chemical Examiner is no evidence unless the same is supported by reasons---Chemical Examiner's report, except the opinion that the samples contained Charas, had no other data as prescribed by the law, which being a patent infirmity was fatal to the prosecution case---No evidence existed to connect the Chemical Examiner's Report with the recovered substance---Prosecution was bound to prove/link evidence with the arrest of the accused; seal of the case property and the samples from the time of its recovery and deposit in the Malkhana and later with the office of Chemical Examiner by examining all the witnesses who remained associated with the entire process---Trial court had committed grave illegality in convicting the accused without any legal evidence available on the record--- High Court, setting aside the conviction/sentence, acquitted the accused---Appeal against conviction was allowed accordingly.

Naveed Afzal Basra for Appellant.

Tariq Saleem Sheikh, Special Prosecutor for ANF for the State.

2017 P Cr. L J 699

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

AURANGZAIB alias GUDDU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.156-J and Murder Reference No. 213 of 2011, heard on 4th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence---Appreciation of evidence---Benefit of doubt---Brother of the complainant went missing in the year 2006, regarding which complainant got registered FIR, wherein he did not raise suspicion against anybody---On recovery of human skeleton, another FIR was registered under Ss.302 & 201, P.P.C., and accused was arrested on the basis of suspicion---Complainant did not raise suspicion against accused, neither in earlier FIR nor in the FIR registered after recovery of skeleton/dead body---Incident was unseen---Skeleton/dead body, had been recovered prior to arrest of accused---Nothing was recovered or discovered on pointation of accused and the fact of recovery of skeleton/dead body was already in knowledge of Police and witness---Disclosure of accused leading to pointation of place of burying dead body, was inconsequential, in circumstances---Attempt to connect accused by alleged confession made by him while in Police custody, was of no help to prosecution; same could not be used against him---Prosecution, having failed to prove charge against accused beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court, were set aside; accused was acquitted of the charge by extending him benefit of doubt, and he was released, in circumstances.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Rehmat Elahi v. Abdul Majeed and others 2012 PCr.LJ 1529 rel.

Aiyan Tariq Bhutta and Pirzada Zaroon Rasheed for Appellant.

Malik Muhammad Jaffer, Deputy Prosecutor General for the State.

2017 P Cr. L J 706

[Lahore]

Before Erum Sajad Gull, J

MUHAMMAD ALI---Petitioner

Versus

SPECIAL JUDGE, CENTRAL, FAISALABAD and others---Respondents

Writ Petition No. 17818 of 2009, decided on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 173--- Emigration Ordinance (XVIII of 1979), Ss. 17, 22 & 24(6)---Quashing of proceedings---Cancellation report by Investigating Officer---Trial Court, duty of---Sanction of Federal Government---Petitioner was facing trial as accused and his grievance was that Trial Court did not agree with report of Investigating Officer to cancel the case---Validity---Order passed by Trial Court was a short order wherein no reasons as to why cancellation report filed by Investigating Officer of Federal Investigation Agency was not agreed with, was recorded---Order in question was also silent regarding compliance of requirements of mandatory provisions laid down in S. 24(6) of Emigration Ordinance, 1979---High Court set aside the order in question and remanded the matter to Trial Court to pass a speaking order---Constitutional Petition was allowed in circumstances.

Ameer Akbar Ali Qureshi for Petitioner.

Muhammad Naeem Bhatti for Respondent No.5.

2017 P Cr. L J 712

[Lahore]

Before Mazhar Iqbal Sidhu, J

NOOR AFZAL---Petitioner

Versus

STATE and others---Respondents

Criminal M. No. 4773-B of 2016, decided on 14th October, 2016.

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

----S. 497---Penal Code (XLV of 1860), S. 376(ii)---Abduction and selling of women, rape---Bail, refusal of---Accused and his co-accused accomplices allegedly operated a gang which abducted and sold women--- Victim was recovered by the intervention of the High Court---Victim was being held as chattel and was sold from one hand to anther---Accused was a member of a criminal ring---Offence alleged prima facie fell within the prohibitory clause of S. 497, Cr.P.C.---High Court observed that Islam attributed esteemed respect to women as far as their rights were concerned---Bail was refused accordingly.

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

----S. 497---Bail---Old age of accused---Mere old age of accused was no ground to allow him bail.

Ch. Shamrez Nasir Sivia for Petitioner.

Javed Iqbal Ranjha for the Complainant.

2017 P Cr. L J 721

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No. 1566-B of 2015, decided on 11th November, 2015.

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

----S. 497, proviso---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd; rioting armed with deadly weapon; common object---Bail, refusal of---Statutory delay in conclusion of trial---Determination and scope---Bail on ground of old/advance age---Scope---Examination of the reasons for delay in conclusion of trial was the requirement of law under S. 497, proviso, Cr.P.C., where the bail had been sought on ground of statutory delay¬, and the court had to consider with great care as to whether the accused was a previous convict of offence punishable with death or imprisonment for life and a desperate/dangerous criminal or accused of act of terrorism or whether the delay in trial had been occasioned by an act or omission of the accused or any other person on his behalf---Case had been adjourned on the request of the accused on most of the dates of hearing, after framing of the charge---No witness had been cross-examined despite the order of the court that in case of no cross-examination of the witnesses, the right of cross-examination would be closed---Right of bail could not be extended to the accused even after lapse of two years statutory period, when he himself was responsible for the delay in conclusion of the trial---Old age itself was no ground for grant of bail, unless, the accused was sick and infirm---No report regarding infirmity or sickness of the accused was available on record; therefore, bail on ground of old/advance age could not be granted---Bail application was dismissed in circumstances.

Liaqat Hussain v. The State PLD 1999 SC 504 and 1998 SCMR 897 rel.

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

----Ss. 497 & 91---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd; rioting armed with deadly weapon; common object---Bail, refusal of---Applicability and scope of S.91, Cr.P.C.---Power to take bond for appearance---Section 91, Cr.P.C. was not applicable to the case, as the accused having been arrested had sought his bail after arrest under S. 497, Cr.P.C.---Section 91, Cr.P.C. would be applicable only where the accused had been summoned to face trial and not where the release of the accused had been sought under S. 497, Cr.P.C.---Bail application was dismissed in circumstances.

Sarwar and others v. The State and others 2014 SCMR 1762 rel.

Malik Umer Qayyum for Petitioner.

Ghulam Farooq Awan for the Complainant.

2017 P Cr. L J 727

[Lahore (Bahawalpur Bench)]

Before Khalid Mahmood Malik and Farrukh Gulzar Awan, JJ

MUHAMMAD ABBAS and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No.203-J of 2015, decided on 6th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 396 & 149---Dacoity with murder, common object---Suspension of sentence, petition for---FIR was registered against unknown accused and the petitioners were arrested on secret information, being suspects and were involved in that case having been identified by the witnesses during identification parade---No specific role had been assigned to the petitioners in proceedings of identification parade---No looted property was recovered from the petitioners---Deeper appreciation of evidence, though was not permissible at such stage, but the same was permissible to the extent of slightly touching merits of the case, without giving conclusive findings---Question qua the role of petitioners, and non-recovery of looted amount from the petitioner, needed reappraisal of evidence at the time of hearing appeal---Co-appellant had been sentenced to death by the Trial Court; there was no likelihood of appeal being heard in near future---No evidence was on record including that petitioners were, previously convicted, hardened-desperate or dangerous criminals; or were accused of an act of terrorism punishable with death or imprisonment for life---Sentence awarded to the petitioners, was suspended, and petitioners were directed to be released on bail, in circumstances.

Khalid Javed Gillani v. The State PLD 1978 SC 256 rel.

Syed Zeshan Haider for Petitioners.

Mirza Muhammad Azam for the Complainant.

Gulzar Ahmad Sabir, APG for the State.

2017 P Cr. L J 789

[Lahore]

Before Miss Aalia Neelum, J

ALLAH DITTA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 646, 704 of 2013 and Criminal Revision No. 392 of 2013, heard on 22nd September, 2016.

(a) Criminal trial---

----Circumstantial evidence---Conviction---Principles---Questions to be considered in case of circumstantial evidence were that the facts on which the prosecution relied must be fully and finally established---Such facts must lead to only one conclusion that was the guilt of the accused and must exclude all reasonable hypothesis consistent with the innocence of the accused.

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

----Ss. 302, 377 & 34---Qatl-i-amd, un-natural offence, common intention---Appreciation of evidence---Benefit of doubt---Complainant consumed unexplained three hours for reaching the police station for reporting the incident, which was only 16 kilometers away from the place of occurrence---On receiving information about the incident, police proceeded to the place of occurrence and prepared inquest report---Complainant and prosecution witnesses were not present at the time of preparation of the inquest report---FIR was lodged later on---Circumstances suggested that FIR was lodged at belated stage after due deliberation and consultation, and such FIR had lost its value and authenticity, which cast serious doubt about the veracity of prosecution case---Appeal was allowed accordingly and conviction and sentence awarded to the accused by the Trial Court were set aside.

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

----Ss. 302, 377 & 34---Qatl-i-amd, un-natural offence with common intention---Related witnesses---Testimony of closely related witness---Reliance---Complainant and prosecution witnesses were close relative of deceased but relationship alone was not a factor to affect the credibility of witnesses, unless some other factors were brought on record to discredit their creditworthiness---Appeal was allowed and conviction and sentence awarded to the accused by the Trial Court were set aside.

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

----Ss. 302, 377 & 34---Qatl-i-amd, un-natural offence, common intention---Appreciation of evidence---Benefit of doubt---Complainant had alleged that accused committed un-natural offence with the deceased---Medico-legal certificates of the accused persons did not reflect that accused had committed the act of sodomy with the deceased, as no mark of injury was found on the private parts of the deceased---Neither DNA test was got conducted nor any report regarding semen grouping was obtained---Absence of medical evidence had given a fatal blow to the prosecution case---Appeal was allowed and conviction and sentence awarded to the accused by the Trial Court were set aside.

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

----Ss. 302, 377 & 34---Qanun-e-Shahadat (10 of 1984), Art. 3---Qatl-i-amd, un-natural offence, common intention---Appreciation of evidence---Statement of child aged six years---Prosecution produced child witness---Evidence of child witness was dangerous unless immediately recorded before any possibility of coaching was eliminated---Independent evidence was required in case of child witness from which corroboration was to be sought not only about the factum of crime but also to connect the accused with the crime---Evidence of child witness, in the present case, suffered from serious infirmity due to non-recording of the statement of the child at the earliest---Witness of six years old was an easy prey to tutoring---Evidence of such child witness was not trustworthy due to the reason that the same was introduced by the complainant later-on.

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

----Ss. 302, 377 & 34---Qatl-i-amd, sodomy, common intention---Appreciation of evidence---Recovery of brick piece as weapon of offence---Relevance---Recovery of brick piece on the pointing out of both the accused, which was a joint recovery---Joint recovery could not be regarded legal and admissible in law---Circumstances suggested that recovery of brick piece as weapon of offence could not be taken into consideration---Appeal was allowed and conviction and sentence awarded to the accused by the Trial Court were set aside.

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

----Ss. 302, 377 & 34---Qatl-i-amd, un-natural offence, common intention---Appreciation of evidence---Benefit of doubt---No direct evidence was adduced by the prosecution to connect the accused persons with the commission of offence---Prosecution had not been able to prove its case against accused through incriminating, corroborative/independent evidence to bring home guilt of the accused persons in the case of capital charge---Prosecution failed to substantiate the charge against the accused beyond any shadow of doubt, benefit of which resolved in favour of accused persons---Appeal was allowed accordingly and conviction and sentence awarded to accused by the Trial Court were set aside.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Syed Karamat Ali Naqvi for Appellant (in Criminal Appeal No.646 of 2013).

Muhammad Zaman Khan Vardag and Muhammad Nouman Shams Qazi for Appellant (in Criminal Appeal No. 704 of 2013).

Muhammad Mehmood Chaudhary for the Complainant and Petitioner (in Criminal Revision No. 392 of 2013).

Muhammad Akhlaq, Deputy Prosecutor General for the State.

2017 P Cr. L J 829

[Lahore]

Before Muhammad Anwaarul Haq, J

Ch. IRFAN ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Misc. No. 6428-B of 2016, decided on 1st August, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, confirmation of---Further inquiry---Complainant alleged that accused persons with their co-accused prepared forged documents and tried to occupy the disputed property---Fingerprint Examination Report reflected that in fact complainant had himself thumb marked those documents---Complainant was not the affected party of the alleged crime but the real owners who could lodge FIR against culprits in the crime; no application was moved on behalf of real owners regarding preparation of forged documents---Investigating officer conceded that he failed to associate real owners of property in the investigation---Forged documents were allegedly prepared by accused and complainant; in absence of statements of real owners of disputed property, police failed to conclude the investigation---Prima facie, no direct evidence was available on record against accused persons regarding their involvement in commission of alleged forgery---Mens rea, if any, could validly be determined by Trial Court after recording of evidence---Ad interim pre-arrest bail already allowed to accused was confirmed accordingly.

Muhammad Ajmal Adil for Petitioners.

Muhammad Akhlaq, Deputy Prosecutor-General and Ghulam Qadir, ASI with record for the State.

2017 P Cr. L J 848

[Lahore]

Before Mazhar Iqbal Sidhu, J

TAUQEER ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1664 of 2009, heard on 30th September, 2016.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Complainant had alleged that accused committed zina-bil-jabr with her---Trial Court convicted the accused and sentenced him to imprisonment for ten years---Report of seminal swabs was positive but the report of DNA profile did not involve the accused in the case---Scientifically doubt was created through the DNA report, benefit of which would be extended to the accused---Prosecution had failed to prove its case beyond doubt---Conviction and sentence awarded to the accused was set aside.

(b) Criminal trial---

----Benefit of doubt--- Scope--- Prosecution was duty bound to prove its case beyond any reasonable doubt, and if any slightest doubt was created, its benefit to be extended necessarily to the accused.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Complainant (victim) had alleged that accused committed zina-bil-jabr with her---Prosecution version was not supported by the report of DNA profile in respect of involvement of accused---Statement of victim in such circumstances could not be accepted without independent corroboration as the victim was used to conjugality being a married lady---Circumstances of the case created reasonable doubt about the veracity of the prosecution case, benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentence awarded to the accused by the Trial Court was set aside.

Zaeem Raza Kazmi (Defence counsel) at the State expense for Appellant.

Nemo for the Complainant.

Ikram Ullah Khan Niazi, DPG for the State.

2017 P Cr. L J 1001

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

MUSHTAQ alias BHOLA and others---Appellants

Versus

The STATE and another---Respondent

Criminal Appeals Nos. 249-J, 1351 and Murder Reference No. 224 of 2012, heard on 2nd February, 2017.

Criminal Procedure Code (V of 1898)---

----S. 367--- Penal Code (XLV of 1860), Ss. 302, 324, 337-A(ii), 337-F(i), 452, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, damiyah, house trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, common intention---Submission of judgment for confirmation of death sentence---Allegation against accused persons was that they made firing upon the complainant party, resultantly one person died and five persons were injured---Trial Court had framed charge against accused and co-accused persons under Ss. 302, 324, 337-A(ii), 337-F(i), 452, 148, 149, P.P.C. for the murder of deceased and causing injuries to prosecution witnesses---Trial Court while handing down judgment, had neither acquitted accused and co-accused persons nor recorded conviction against them---Effect---Record showed that prosecution was consistent from day one that accused persons along with co-accused persons, by forming an unlawful assembly in furtherance of their common object, had inflicted injuries on the person of deceased as well as prosecution witnesses---Trial Court had believed the presence of accused persons, armed with their respective weapons, at the place of occurrence at the relevant time, being part of the unlawful assembly, who along with co-accused had participated during the occurrence in which one person was done to death and prosecution witnesses received injuries---Trial Court, while passing judgment had not given any findings about the applicability of provisions of Ss. 302/149, P.P.C., to the extent of accused and co-accused persons although the same was part of the charge framed by the Trial Court---Trial Court had not given findings under the provisions of S. 337-A(ii), P.P.C., to the extent of accused persons---Circumstances established that judgment delivered by Trial Court being against the judicial acumen was not maintainable---Matter was remanded to the Trial Court with the direction to re-write the judgment after providing opportunity of hearing to both the parties.

Tahir Bashir and Shaigan Ejaz for Appellants.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2017 P Cr. L J 1020

[Lahore]

Before Mirza Viqas Rauf and Sardar Muhammad Sarfraz Dogar, JJ

SHAUKAT ALI---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. 16074-B of 2016, decided on 10th January, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15---Possession of narcotic drugs, aiding, abetment or association in narcotic offences---Bail, grant of---Further inquiry---Complainant (police official) had alleged that on spy information a raid was conducted and Charas (narcotic) was recovered and accused was apprehended in company of co-accused from the place of recovery---Case of prosecution was that one co-accused while driving car arrived at venue of recovery and in the meanwhile second co-accused along with accused came there and second co-accused received polythene bag from one co-accused whereas rest of Charas was recovered from beneath the driving seat on pointation of one co-accused---No recovery was effected from the person of accused---Mere fact that accused was accompanying the co-accused from whose possession Charas was recovered, his active involvement in the crime was to be determined at the time of trial after recording of evidence---Case of accused fell within the ambit of further inquiry and probe---Bail was granted accordingly.

Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 rel.

Muhammad Ajmal Adil for Petitioner.

2017 P Cr. L J 1053

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

ABID MASIH---Appellant

Versus

The STATE---Respondent

Crl. Appeal No. 440-J and Murder Reference No. 417 of 2013, heard on 3rd February, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Allegation against the accused was that he murdered the deceased by cutting his throat with chhurri---Ocular account was furnished by complainant and a witness which was supported by medical evidence---Incident took place in the house of complainant, which had not been disputed by the defence---Both the said witnesses were residents of the same house and they had reasonably explained their presence at the spot at the time of occurrence---Presence of both the witnesses in their own house at the time of incident was quite natural and probable---Said eye-witnesses were subjected to lengthy cross-examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted---Case of the complainant was that accused cut the neck of deceased---Medical evidence showed that four incised wounds on the neck and chest of deceased were found, caused by sharp edged weapon---Injuries on neck were fatal injuries---Said injuries were mentioned in the postmortem report of the deceased---Conviction of accused was maintained and sentence from death was altered to imprisonment for life, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Single accused---Substitution of accused---Substitution in such like cases was a rare phenomenon as the complainant would not implicate an innocent person by letting off the real culprit.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Sentence, reduction in---Extenuating circumstances---Effect---Motive as alleged by complainant was that accused suspected that deceased had illicit relations with his maternal niece---Name of maternal niece had not been mentioned in FIR nor disclosed during examination-in-chief of the eye witnesses---Circumstances suggested that a vague motive had been introduced by the prosecution, which was based on oral assertion---No independent witness about alleged motive was produced during investigation or before Trial Court---Prosecution had not been able to substantiate the motive---Failure of prosecution in proving motive would constitute extenuating circumstances for reducing the sentence of death to the imprisonment for life---Conviction was maintained, sentence of accused from death to imprisonment for life was altered in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence from accused---Reliance---Recovery of chhurri at the instance of accused was effected---Positive report of Chemical Examiner as well as Serologist were inconsequential because of the reasons that the chhurri was got recovered from canal bridge, which was a open place and accessible to everyone---Recovery memo failed to show that recovered chhurri was blood-stained---Conviction was maintained but sentence of accused from death to imprisonment for life was altered in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, common intention---Appreciation of evidence---Sentence, reduction in---Extenuating circumstances---Even if evidence of motive and the recovery of chhurri (weapon used) at the instance of accused was excluded from consideration, yet sufficient incriminating evidence was available on the record against accused in the form of straightforward and confidence inspiring ocular account furnished by two eye-witnesses fully supported by medical evidence, to maintain conviction of the accused under S. 302(b), P.P.C., which was maintained---Case was not that of capital punishment for the reason that motive and recovery of weapon of offence had not been proved---Circumstances established that there were sufficient extenuating circumstances, on the basis of which the accused could not be made liable to the maximum punishment provided under S. 302(b), P.P.C.---Conviction was therefore, maintained but sentence of accused from death to imprisonment for life was altered in circumstances.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

Barrister Danyal Ijaz Chadhar and Ms. Sheeba Qaiser for Appellant.

Khurram Khan, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2017 P Cr. L J 1077

[Lahore (Rawalpindi Bench)]

Before Muhammad Anwaarul Haq and Muhammad Tariq Abbasi, JJ

MUHAMMAD YASIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 507 of 2016, decided on 10th April, 2017.

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

----Ss. 9(b), 9(c) & 6--- Criminal Procedure Code (V of 1898), S. 382-B--- Possession of narcotic substances/drugs--- Sentence, quantum of---Determination---Weight of the contraband---Accuracy of weight of contraband to be determined by experts of Forensic Science Laboratory/Agency---Scope---Accused was convicted and sentenced under S. 9(c) of the Control of Narcotic Substances Act, 1997---Contention of accused was that he should be sentenced under S. 9(b) instead of S. 9(c) of the Control of Narcotic Substances Act, 1997, since sample of recovered contraband, when subjected to chemical analysis, weighed much less than what was determined by Investigating Officer---Validity---Recovery of contraband (charas) from the accused stood proved, and 1015 grams of the same were recovered, out of which 10 grams were sent for chemical examination, which report reflected the 6.22 grams instead of 10 grams, which raised serious questions about accuracy of scale used by Investigating Officer at time of weighing of contraband, and therefore, scale used by the Investigating Officer was defective---Weight of contraband was of vital importance in deciding quantum of sentence and even difference of one gram was significant and in cases of controversy regarding weight of contraband, preference was to be given to the scale used by experts of the Forensic Science Laboratory---High Court observed that keeping in view deficiency found in weight of the sample, weight of total contraband recovered from accused should be determined after deduction of a percentage from 1015 grams, which meant, that the actual weight of the charas recovered became 631 grams, which fell within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997---Conviction of accused was converted from that under S. 9(c) of the Control of Narcotic Substances Act, 1997 to one under S. 9(b) of the Act, and his sentence was modified accordingly, along with benefit of S. 382-B, Cr.P.C.---Appeal was disposed of, accordingly.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Muhammad Nawaz Bhatti for Appellant.

Naveed Ahmad Warraich, Deputy District Public Prosecutor with Qasim, S.I. for the State.

2017 P Cr. L J 1092

[Lahore]

Before Abdul Sami Khan, J

MUKHTAR AHMAD---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Misc. No. 13142-B of 2016, decided on 11th November, 2016.

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

----S. 497---Bail---Deeper appreciation of evidence at bail stage was not allowed.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, common intention---Bail, grant of---Further inquiry---Allegation in the FIR was that accused and co-accused persons had made firing at deceased---Accused was named in FIR but no specific role was assigned to him---General allegation was levelled against the accused---During the course of investigation, it had come on record that accused was not present at the spot at the time of occurrence---Said opinion of Investigating Officer was supported by the call data, CDR of Mobile number of the accused as well as affidavits of eight different persons of the locality---Complainant did not challenge the outcome of investigation---Circumstances suggested that case of accused was that of further inquiry---Accused was granted bail accordingly.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, common intention---Bail, grant of---Further inquiry---Case of two versions---Allegation contained in FIR and the facts emerged during the course of investigation, prima facie showed that case against the accused had become a case of two versions, one put forward by the complainant in the FIR and the other coming on record during investigation---As to which version was correct, was to be determined by the Trial Court after recording evidence---Admittedly, accused was previous non-convict---Accused was behind the bars since his arrest and no useful purpose would be served by keeping him in the Jail---Investigation had been completed and accused was no more required for investigation---Mere heinousness of offence was no ground to refuse bail if otherwise accused was entitled to the concession of bail---Attending circumstances rendered the case against accused one of further inquiry into his guilt---Accused was granted bail accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137; Zaigham Ashraf v. State and others 2016 SCMR 18 and 2016 SCMR 1558 rel.

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

----S. 497---Bail---Benefit of doubt---Principle---Benefit of doubt could be given to the accused even at bail stage.

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

----S. 497---Bail---Observations made in the order granting/refusing bail was tentative in nature and strictly confined to the decision of the bail application.

Amir Saeed Rawn for Petitioner.

Irfan Zia, Deputy Prosecutor General and Amjad, SI with record for the State.

2017 P Cr. L J 1104

[Lahore]

Before Shahid Hameed Dar, J

KHALID MEHMOOD and 3 others---Petitioners

Versus

SAFDAR IQBAL and another---Respondents

Criminal Misc. No. 54/Q of 2010, decided on 24th March, 2016.

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

----Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), Ss. 249-A & 561-A---Cheating and dishonestly inducing delivery of property; forgery for purpose of cheating; using as genuine a forged document---Power of Magistrate to acquit accused at any stage---Marriage/Nikkah, validity of---Family Court's decision on issue of Nikkah---Effect on criminal trial---Complainant lodged the FIR alleging that accused along with co-accused having abducted the wife of his nephew had fabricated a forged Nikahnama showing her marriage with him and used the same as genuine---Accused persons filed application under S. 249-A, Cr.P.C. which was dismissed both by the Trial Court and revisional court---Complainant of the FIR had not produced the alleged husband/his nephew, who was the aggrieved person in real sense, during the course of the investigation of the case---Three incomplete reports under S. 173, Cr.P.C. had been tendered by the police before the final complete report under S. 173, Cr.P.C. had been submitted before the Trial Court, but in none of the reports, the name of the said husband/nephew was mentioned---Lady had filed a suit for jactitation of marriage against the complainant's nephew, which the Family Court had decreed in her favour declaring her Nikkah with the complainant's nephew as illegal and holding her Nikkah with the accused as proper and valid---Complainant's nephew had not challenged the said judgment and decree of the Family Court before any forum---Complainant had admitted in his testimony that he already knew about the said decree for jactitation of marriage and that the lady had treated and endorsed her Nikkah with the accused as correct---Complainant had not let his nephew to appear before the Trial Court either in the present case and he had merely acted as his attorney---Criminal case could not have been agitated or defended through a special attorney---Issue of Nikkah between the parties had effectively been decided by the Family Court, and the decision of the Family Court, would have a binding effect on the decision in the trial of present case---Accused and the lady, in their statement under S. 342, Cr.P.C., had categorically admitted and accepted each other as husband and wife---Lady had even delivered a child during pendency of her suit for jactitation of marriage---Genuineness and sanctity of marriage had stood doubly stamped , one by the judgment and decree of the Family Court, and the other, by the birth of the child---Matrimonial relationship of the accused persons thus had stood proved, as the same had got legitimacy with the passage of time---Marriage would have an overriding effect on the trial by the court---High Court, quashing the proceedings of the trial, acquitted the accused persons---Application under S. 249-A, Cr.P.C. filed before the Trial Court was allowed accordingly.

Quaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342; Ghazanfar Ali v. M. Zahid Hussain and others PLD 2011 Lah. 179; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; The State v. Asif Ali Zardari and another 1994 SCMR 798; State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 and Muhammad Sharif v. The State PLD 1999 SC 1063 rel.

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

----S. 249-A---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Power of Magistrate to acquit accused at any stage---Scope and requirements---Trial of the accused persons was although at an advanced stage merely a couple of steps away from its conclusion, yet, that might be no reason to restrain from exercising judicial authority under S. 249-A, Cr.P.C., which empowered the Trial Court to acquit the accused at any stage of the trial---Only requirements to be fulfilled under S. 249-A, Cr.P.C. were, firstly, that hearing was to be given to the prosecutor and counsel for the accused, secondly, reasons were to be recorded in support of conclusion that the charge was groundless or that there was no probability of accused being convicted.

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

----Ss. 249-A & 265-K---Power of Magistrate to acquit accused at any stage---Scope---Use of the expression 'at any stage of the case' in S. 249-A & 265-K, Cr.P.C. does not leave the question of recording the evidence as a condition-precedent before taking action under either of the provisions, which is indicative enough of the intention that any such stage can be the very initial stage, after taking cognizance or it can be a middle stage after recording some proceedings and/or even it can be a later stage as well.

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

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court---Scope---Section 561-A, Cr.P.C. confers inherent powers upon High Court to make such orders as may be necessary to give effect to any order under Cr.P.C. or to prevent abuse of process of any court or otherwise to secure the ends of justice---Powers under S. 561-A, Cr.P.C. are wide and the same can be exercised at any time, when the Trial Court exercises its judicial powers under S. 249-A or 265-K, Cr.P.C., which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under S. 561-A, Cr.P.C.---High Court may exercise its inherent jurisdiction under S. 561-A, Cr.P.C. even without any order from such court under S. 249-A or 265-K, Cr.P.C., where it appears that the process of a court is being abused.

State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 rel.

Allah Bakhsh Gondal for Petitioners.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab with Riasat Ali, ASI for the State.

2017 P Cr. L J 1140

[Lahore]

Before Mazhar Iqbal Sidhu and Malik Shahzad Ahmad Khan, JJ

Mian TOUSEEF---Appellant

Versus

DISTRICT POLICE OFFICER and 2 others---Respondents

I.C.A. No. 1188 of 2014 in W.P. No. 23227 of 2014, heard on 1st March, 2016.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 22-A (6)(i)---Law Reforms Ordinance (XII of 1972), S. 3(2)---Qatl-i-amd---Registration of case---Intra court appeal---Maintainability---Complainant filed petition before Ex-officio Justice of Peace for registration of FIR against accused-police officials for murder of her brother in police custody which was dismissed---Constitutional petition under Art.199 of the Constitution of complainant was accepted and direction was issued by the High Court for registration of case against accused-police officials---Accused filed intra court appeal against said order---Maintainability---Word "proceedings" mentioned in proviso to S. 3(2) of Law Reforms Ordinance, 1972 included FIR, therefore, intra-court appeal against order of Single Judge passed in constitutional jurisdiction for registration of FIR was not maintainable---Opportunity of hearing was not a legal requirement to an accused in murder case before the registration of FIR---Time lapsed between injury and death was 24-hours and between death and post mortem was 16-24 hours which meant that injuries to the deceased were caused on the date when deceased was in police custody---Version of accused-police officials that deceased was beaten by local residents was fully negated by post-mortem report---Accused-police officials alleged that deceased committed suicide with help of his "nala" but deceased was wearing shalwar qameez at the time of his post-mortem examination---During pendency of judicial as well as departmental inquiry FIR against the Police Officer could be registered---Intra court appeal was dismissed accordingly.

Nawazul Haq Chowhan v. The State and others 2003 SCMR 1597; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Wajid Ali v. Civil Judge and Judicial Magistrate No.1 and 5 others PLD 2014 Sindh 164; Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1970 Lah. 679 and Mumtaz Hussain v. Deputy Inspector General, Faisalabad and 7 others PLD 2002 Lah. 78 rel.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Criminal Procedure Code (V of 1898), S. 154---Intra-court appeal---Maintainability---Word "proceedings" mentioned in proviso to S. 3(2) of Law Reforms Ordinance, 1972 includes also FIR, therefore, intra-court appeal against order passed by Single Judge of High Court in constitutional jurisdiction for registration of FIR was not maintainable.

Nawazul Haq Chowhan v. The State and others 2003 SCMR 1597 and Ahmad Yar v. Station House Officer, Shah Kot, District Sahiwal and 8 others 2007 PCr.LJ 1352 rel.

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

----S. 22-A (6)(i)---Application before Justice of Peace for registration of case---Right of accused for being heard---Cases where no urgency was involved and there were no chances of destruction of evidence, e.g. cheating, fraud, forgery, criminal breach of trust, ineffective firing, criminal trespass, criminal intimidation and other cases of like nature, opportunity of hearing must be provided to the accused before registration of FIR---Cases where delay in registration of FIR might cause destruction of valuable evidence, e.g. murder, hurt, dacoity, terrorism, kidnapping and abduction, rape, possession of counterfeit currency, drugs and other cases of like nature, there was no need to provide opportunity of hearing to accused---If it appeared on record that petition for registration of FIR before Justice of Peace seemed to be based on mala fide then opportunity of hearing might be provided to the accused.

Malik Muhammad Sadiq v. Station House Officer and others 2013 PCr.LJ 1177; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Wajid Ali v. Civil Judge and Judicial Magistrate No.1 and 5 others PLD 2014 Sindh 164 and Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1970 Lah. 679 rel.

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

----S. 154---Registration of case---Registration of case/FIR was independent right of an aggrieved person who could report the matter to the in-charge of concerned police station, who was bound under the provision of S. 154, Cr.P.C. to record his report and conduct investigation in accordance with law.

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

----Ss. 174 & 176---Death of accused in Police custody---Inquiry by Magistrate---Scope of Ss. 174 & 176, Cr.P.C. was limited to ascertainment of cause of death without recording a finding regarding guilt or innocence of accused.

Mumtaz Hussain v. Deputy Inspector General, Faisalabad and 7 others PLD 2002 Lah. 78 rel.

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

----S. 174---Inquiry by police---Scope---Officer in-charge of police station or other police officer specially empowered could hold an investigation on receiving information that a person had committed suicide or killed or died under circumstances raising a reasonable suspicion that some other person had committed an offence.

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

----Ss. 176 & 174---Death of accused in police custody---Inquiry by Magistrate--- Scope--- Magistrate could hold an enquiry into the cause of death of a person if it had taken place, while the deceased was in police custody---Such enquiry could be either instead of or in addition to the investigation held by a police officer under S. 174, Cr.P.C.

Khuda Bakhsh v. Province of West Pakistan PLD 1957 Lah. 662 rel.

Barrister Suleman Safdar for Appellant.

Mrs. Salma Malik, Assistant Advocate-General with Muhammad Ilyas, S.I. and Abdul Ashfaq, ASI for Respondent No.1.

Muhammad Arfan Malik for Respondent No.2.

Nemo for Respondent No.3.

2017 P Cr. L J 1164

[Lahore]

Before Aalia Neelum, J

MEHBOOB ALIM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1353 of 2010 and Murder Reference No. 334 of 2010, heard on 27th November, 2015.

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

----Ss. 302(b), 324, 34 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, house-trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Post mortem of the deceased was conducted with considerable delay, without any plausible explanation---Such aspect of the case was sufficient to cast doubt about authenticity of the FIR and that FIR was recorded after due deliberation and consultation---FIR had lost its value and authenticity as the same had been recorded till injured were medically examined---Possibility of the complainant being motivated or manipulated, could not be completely ruled out---Vital contradiction existed with regard to the place of incident and source of light---No source of light was available at the place of occurrence to identify accused persons---Large number of villagers, allegedly had come to the place of occurrence, but none of them, came to support prosecution case---Motive had not been proved---Delay in recording statements of the prosecution witnesses, without plausible explanation, was sufficient to raise suspicion about the claim stated by the witnesses---Trial Court on the basis of testimony of injured witness, had acquitted two co-accused persons---Testimony which was not believed against acquitted co-accused persons, could not be used against accused for maintaining his conviction---Inconsistent version with regard to time, place of occurrence, had made the prosecution case wholly doubtful---Ocular account produced by the prosecution including, injured witnesses, was not worthy of credence and same could not be believed against accused---Accused was alleged to have absconded, but nothing was available to show that proceedings under Ss.87, 88 of Cr.P.C., were taken against accused---Carbine .12-bore allegedly recovered on the disclosure of accused, had not been matched with the crime empties recovered from the place of occurrence---Prosecution had failed to establish its case---Conviction and sentence of accused, were set aside; accused was acquitted of the charge; and was set at liberty, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Rahat Ali v. The State 2010 SCMR 584; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Muhammad Akram v. The State 2009 SCMR 230; PLD 1971 Lah. 292; PLD 1971 Lah. 708; PLD 1963 (W.P.) Kar. 92; PLD 1964 (W.P.) Pesh. 67; 1975 PCr.LJ 957; AIR 1953 Orissa 160 and 1983 PCr.LJ 72 ref.

Amin Ali and another v. The State 2011 SCMR 323; Rohtas Khan v. The State 2010 SCMR 566 and Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394 rel.

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

----Ss. 378 & 429---Reference to third Judge on difference of opinion of Division Bench---Principles---Judge to whom the case was referred for decision would independently assess the evidence and form his own opinion about the matter---Such case was not to be referred again to the Division Bench which had heard the same, and decision of referee Judge would not be a majority decision rather would be the opinion of the referee Judge which would have decisive effect and would be of binding nature and the judgment or order will follow such opinion.

Shahid Azeem for Appellant.

Ch. Sattar Shahzad for the Complainant.

Muhammad Akhlaq, Deputy Prosecutor-General along with Mohsin, ASI for the State.

2017 P Cr. L J 1193

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Raja Shahid Mehmood Abbasi, JJ

ANTI-NARCOTICS FORCE through Regional Director/Force Commander---Petitioner

Versus

NASIR KHAN---Respondent

Criminal Revision No. 329 of 2010, heard on 10th November, 2015.

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

----Ss. 9(c), 47 & 48---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Possession of narcotic drugs---Criminal revision under Ss. 435/439, Cr.P.C.---Maintainability---Complainant assailed the vires of judgment passed by Special Court which on confessional statement of accused had convicted him under S. 9(c), Control of Narcotic Substances Act, 1997---Section 47 of Control of Narcotic Substances Act, 1997 had made Code of Criminal Procedure Code, 1898 applicable to trial and appeals before a Special Court---Section 48 of the Act contemplated an appeal to High Court against an order passed by a Special Court comprising Sessions Judge or Additional Sessions Judge and in the present case, the Court was that of Sessions Judge thus Ss. 435 & 439, Cr.P.C. would be inconsistent to Ss. 47 & 48 of Control of Narcotic Substances Act, 1997---Order passed under the Act could not be assailed by invoking revisional jurisdiction of High Court---Criminal revision was dismissed being not maintainable.

Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi PLD 2013 SC 361 rel.

Raja Tauqeer Ahmad Satti for Petitioner.

Nemo for Respondent.

2017 P Cr. L J 1221

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

SHAUKAT ALI---Appellant

Versus

The STATE through Prosecutor-General Punjab and another---Respondents

Criminal Appeal No. 484 and Murder Reference No. 126 of 2012, heard on 28th November, 2016.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Prosecution case was that accused committed murder of the son and daughter-in-law of complainant with firearm---Prosecution failed to prove during trial the marriage of deceased couple by producing Nikahnama or any witness of the Nikah---Sister of deceased lady was wife of elder brother of the deceased---Said sister of deceased lady was living with the complainant but she was not produced as a witness in order to prove the case---Husband of the complainant (lady) and her elder son resided in the same house, their presence could easily be secured, but they were not produced as witnesses either during the course of investigation or trial---Adverse inference, in circumstances, could be drawn within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 to the effect that had the said persons produced before the Trial Court, they would not have supported the prosecution case---Apparently, statement of complainant was coherent with the medical evidence and was in line with the prosecution case as set up in FIR but her evidence was disbelieved to the extent of acquitted co-accused persons---Despite the availability of the male members of the family, none of them proceeded to the police station for the registration of FIR at the odd hours of the night---Statement of witness was recorded under S. 161, Cr.P.C. after 2/3 days of the occurrence---Prosecution failed to offer any plausible explanation for said delay in recording his statement---Statement of said witness was contrary to the case of prosecution as well as to the statement of complainant---Circumstances and facts of the case showed that witness of ocular account was not present at crime scene and was subsequently introduced to provide strength to the prosecution case, probably when the real brother and father of the deceased refused to support the (twisted) story mentioned in FIR---In the present case, accused had taken a specific plea that on the relevant night, he found the deceased couple in objectionable condition in an adjoining room of his house---Out of sheer rage, accused started abusing them, deceased pulled out his pistol and pointed at him---Said situation followed a scuffle and finally accused snatched the pistol and killed the couple---Accused took the plea based on self-defence and provocation out of ghairat---Statement of defence witness provided corroboration to the defence version---Defence version got some support from the statement of prosecution witness, who stated that deceased was not wearing any shirt and banyan---Defence plea was further strengthened by the statement of Medical Officer, who stated that an injury of sharp edged weapon was found on the body of the deceased, which was apparently caused during scuffle, as narrated by accused---Circumstances established that occurrence was committed in the manner stated by accused and not as claimed by the prosecution---Occurrence was not found to be pre-meditated rather committed at the spur of the moment and that too on account of human frailty---Sentence of death passed by the Trial Court against the accused on the charge of murder was thus not justified---Conviction was maintained but death sentence awarded to accused under S. 302(b), P.P.C. was reduced to imprisonment for life in circumstances.

Muhammad Rafique and others v. State and others 2010 SCMR 385; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Bux v. Abdul Aziz and others 2010 SCMR 1959; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Khan v. Maula Baksh and another 1998 SCMR 570; Rahat Ali v. The State 2010 SCMR 584; Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

(b) Criminal trial---

----Motive---Failure to establish motive as set out in FIR was a factor, which goes against the prosecution---Prosecution, though was not obliged to prove the motive in each and every case---However, once the motive was setup then it must be established.

(c) Criminal trial---

----Evidence/statement---Contradiction---Scope---Contradiction means negation of version of the prosecution case.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Plea of grave and sudden provocation---Principles.

Following principles can be generalized in order to examine the plea of human killing on account of provocation:-

(i) An act of one person towards another;

(ii) Such act may ignite rage, resentment or fury in the mind of another;

(iii) In order to reduce the charge of murder to manslaughter, the act must be such, which may in the ordinary course of nature stir resentment in the mind of the others, forcing him to resort to violence;

(iv) The person resorting to violence must not have a cool down period;

(v) The retaliation should be in proportionate to provocation.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Muhammad Nawaz v. The State 2005 PCr.LJ 937 and Asghar Ali v. The State 1998 PCr.LJ 1132 rel.

(e) Criminal trial---

----Case of two versions---Scope---Both the versions were to be taken in juxtaposition by the court and thereafter it was to be seen as to which version was more probable and nearer to the truth.

Muhammad Younas v. The State 1992 SCMR 1592 rel.

Ms. Nighat Saeed Mughal for Appellant.

Raja Muhammad Younas Kiani and Muhammad Shehzad Awan for the Complainant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

2017 P Cr. L J 1246

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD USMAN alias SANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16048-B of 2016, decided on 12th January, 2017.

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

----S. 498---Penal Code (XLV of 1860), Ss. 324, 337-F(iii), 109 & 34---Attempt to commit qatl-i-amd, hurt, abetment, common intention---Bail, confirmation of---Further inquiry---Case of two versions---Mala fide intention---Ulterior motive---Delay of twenty three days in registration of FIR---Accused had been assigned role of making a fire shot, which allegedly hit the injured on left thigh and caused damage to his left testicle, yet during the course of investigation one conducted by local police and the second by Deputy Superintendent of Police, it came on the surface of record that injury on the person of injured was caused only by one co-accused---Accused was not present at the spot and he was found involved only to the extent of allegation of abetment, but his active participation in the alleged occurrence could not be established---Complainant had not mentioned name of co-accused in FIR and only names of three accused i.e. present accused along with two other co-accused were mentioned therein---Outcome of investigation that co-accused had caused firearm injury on the person of injured was prima facie found support from his medico legal certificate, wherein the said injured had got mentioned in brief history that four persons were present at the spot at the time of occurrence, but complainant had mentioned names of only three accused in FIR by excluding co-accused---Prima facie case against the accused had become a case of two versions; one put forward by complainant in FIR and other came on record during investigation and as to which version was correct would be determined by Trial Court after recording of evidence---Accused had also got registered FIR wherein injured was named as the accused with specific role of causing fracture of index finger of accused---Accused was previous non-convict---Questions of sharing common intention and vicarious liability of accused in the case were to be determined by Trial Court after recording of evidence---Bail before arrest was meant to save innocent persons from the clutches of police, rigors of remand and investigation---Accused had already joined investigation which was complete to his extent, therefore, no useful purpose would be served by sending him behind the bars---Ad interim bail already granted to accused was confirmed accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137 and Zaigham Ashraf v. State and others 2016 SCMR 18 rel.

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

----S. 498---Bail before arrest---Scope---Bail before arrest was meant to save innocent persons from the clutches of police, rigors of remand and investigation.

Ch. Azeem Sarwar for Petitioner along with Petitioner in person.

Irfan Zia, Deputy Prosecutor General, Shahid, DSP and Nasir Abbas, ASI with record for the State.

2017 P Cr. L J 1264

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 84-J of 2016, heard on 19th December, 2016.

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

----S. 9(c)--- Qanun-e-Shahadat (10 of 1984), Arts. 133 & 151---Constitution of Pakistan, Art.10-A---Possession of narcotic drugs---Appreciation of evidence---Accused was apprehended by the police on suspicion and was found in possession of charas (narcotic)---Trial Court in case of failure of accused to engage counsel, was legally obliged to appoint counsel for accused on State expense, which was not done---Trial Court recorded examination-in-chief of five prosecution witnesses and accused had no opportunity to cross-examine the prosecution witnesses---To defend any criminal proceeding, whether heinous or minor, was a fundamental and essential right of accused as protected under Art. 10-A of the Constitution---Under Arts. 133 & 151, Qanun-e-Shahadat, 1984 right of cross-examination was not merely a formality but a valuable right conferred by the law---Even otherwise, in reaching just and fair conclusion of trial, the accused must not be stripped of his valuable right of fair, reasonable and impartial trial in due course of law and to do away with the same was the negation of concept of due process of law---Case was remanded to the Trial Court.

Muhammad Akbar Sajid Chaudhary for Appellant.

Muhammad Ali Shahab, D.P.-G. for the State.

2017 P Cr. L J 1288

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD NAWAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, PAKPATTAN and 9 others---Respondents

Writ Petitioner No. 12453 of 2014, heard on 8th December, 2015.

Penal Code (XLV of 1860)---

----Ss. 337-F(i)(v), 337-L(2), 148 & 149---Constitution of Pakistan, Art.199---Causing damiah, hashimah, other hurst, rioting, common object--- Application for enhancement of sentence--- Dismissal of application and revision against such dismissal---Dismissal of revision--- Constitutional petition--- Maintainability--- Constitutional petition, was not maintainable against order passed in criminal revision---Nothing was on record to establish that accused persons were embroiled in any other criminal case to consider them hardened and dangerous criminals or previously convicted---All cases of hurt provided for in Chapter XVI of P.P.C., normal punishment to be awarded to an offender was payment of arsh and daman---Optional punishment of imprisonment as Tazir provided for the relevant offence could be awarded to an offender only, where the offender was previous convict, habitual or hardened, desperate or dangerous criminal, or the offence had been committed by him in the name or on the pretext of honour; that being not the case, Trial Court had rightly convicted accused persons accordingly---In view of no flaw or legal infirmity in the judgments of the courts below, constitutional petition being not maintainable, was dismissed, in circumstances.

Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 ref.

Ch. Akbar Ali Tahir for Petitioner.

Shahbaz Ahmed, A.A.-G.

Muhammad Alamgir for Respondents Nos. 3 to 8.

2017 P Cr. L J 1314

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

SOHAIL AHMED and another---Petitioners

Versus

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

Criminal Revision No. 94 of 2016, decided on 21st July, 2016.

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

----S. 22-A---Direction of Justice of Peace to register criminal case in a civil transaction---Validity---Criminal as well as civil pursuits were to follow side by side---Where mischief of a penal provision was found indissolubly annexed with a cause of action, though distinctly justifiable in civil jurisdiction; the distinction, no doubt subtle, nonetheless, was to be carefully observed for the reason that domains of justice in civil and criminal jurisdiction were clearly demarcated, therefore, inter se intrusion must be avoided---Application of punitive laws must be based upon strict construction and unless an act or omission clearly and independently fell within the defined ambit of a penal provision, its prosecution in criminal dispensation would tantamount to abuse of process of law.

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

----S. 22-A---Direction of Justice of Peace to register criminal case in a civil transaction---Validity---Every moral wrong was not a crime nor every broken promise or betrayal justifiable in criminal dispensation.

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

----S. 22-A---Direction of Justice of Peace to register criminal case in a civil transaction---Validity---Mere absence of bar for simultaneous pursuits, in itself, was no justification for recourse in criminal jurisdiction in every run of the mill case.

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

----S. 22-A---Direction of Justice of Peace to register criminal case in civil transaction---Validity---In the present case, neither the transaction of plot nor its location was denied---Pendency of civil suits inter se the parties was a common ground as well---Issue merely related to the conversion of character of plot into a commercial unit and, if at all, an indication was mischievously given to the petitioner so as to induce him to clinch the deal, a host of remedies was available under the civil law---Losses incurred by a claimant on account of alleged default or misrepresentation could be verified, assessed and determined through civil courts---Direction of Justice of Peace to register a criminal case was not in consonance of law.

Malik Jameel Akhtar for Petitioners.

Saqib Hanif Raja for Respondents.

2017 P Cr. L J 1331

[Lahore (Multan Bench)]

Before Hafiz Shahid Nadeem Kahloon, J

MUHAMMAD AHSAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 601 of 2011, heard on 17th November, 2015.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused along with co-accused was alleged to have committed qatl-i-amd of brother of complainant with common intention due to previous enmity---Sufficient material was available on record to establish the guilt of accused, who had been assigned specific role of causing firearm injury to the victim, which caused his death---FIR was promptly lodged---Occurrence was daylight and took place in the presence of prosecution witnesses including eye-witness---Medical evidence also supported the story of prosecution---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 34--- Qatl-i-amd--- Abscondance--- Corroborative evidence---Conduct of accused and his unexplained absence for considerable period was vital and was relevant fact which could be used as corroborative piece of evidence against the accused.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

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

----Ss. 302 & 34---Qatl-i-amd---Appreciation of evidence---Interested witnesses---Accused alleged that prosecution witnesses were interested, inimical and were dead enemies of his family and for that reasons, he was falsely involved in the case---Validity---Prosecution witnesses categorically denied such fact and contended that it was an afterthought---Accused had to produce evidence to substantiate his version but he did not produce any evidence in such context, as such defence version could not be believed---Appeal against conviction was dismissed accordingly.

Khalid Ibn-e-Aziz and Ch. Faqir Muhammad for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Sh. Muhammad Raheem and Mehr Muhammad Saleem Akhtar for the Complainant.

2017 P Cr. L J 1377

[Lahore]

Before Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ

RAZIA BIBI---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 2268, 2274 of 2011 and Murder Reference No.18 of 2012, heard on 24th February, 2016.

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

----S. 342---Penal Code (XLV of 1860), Ss. 302, 436 & 34---Qatl-i-amd, mischief by fire---Appreciation of evidence---No incriminating evidence against accused, consequence of---Where prosecution possessed no incriminating evidence against accused, his statement / version under S. 342, Cr.P.C. had to be believed in toto---If prosecution failed to prove its case against accused person, the accused was to be acquitted even if he had taken a plea and thereby admitted killing the deceased---Conviction recorded by the Trial Court was set aside.

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

----S. 342---Penal Code (XLV of 1860), Ss. 302, 436 & 34---Qatl-i-amd mischief by fire---Appreciation of evidence---Statement of accused---Exculpatory statement---Inculpatory statement---Principles---Statement of accused person recorded under S. 342, Cr.P.C. was to be accepted or rejected in its entirety---Where prosecution evidence was found to be reliable and the exculpatory part of the accused person's statement was established to be false it had to be excluded from consideration---Inculpatory part of the accused's statement may be read in support of evidence of prosecution---Statement of convict was to be believed in its entirety as ocular account had been found unreliable---Conviction recorded by Trial Court was set aside.

Mudassar Hussain Butt and Ch. Naveed Akhtar for Appellant.

Afzal Hussain Rana for the Complainant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

2017 P Cr. L J 1417

[Lahore (Multan Bench)]

Before Shehram Sarwar Ch., J

Mst. AMENA GULNAZ alias AMENA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 862 of 2011, heard on 26th January, 2016.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Possession of crime empties from place of occurrence---Recovery of crime weapon after arrest of accused---Sending the said weapon and empties to Forensic Science Laboratory---Effect---If the crime empty was sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory lost its evidentiary value---Accused was acquitted in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Israr Ali v. The State 2007 SCMR 525 and Ali Sher and others v. The State 2008 SCMR 707 rel.

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

----Ss. 302, 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Statement of accused---Rejection and acceptance of such statement---Exculpatory and inculpatory statement, consideration of---Statement of accused recorded under S. 342, Cr.P.C. was to be accepted or rejected in its entirety and where the evidence of prosecution was found to be reliable and the exculpatory part of statement of accused was established to be false, it had to be excluded from consideration and the inculpatory part of statement of accused might be read in support of the evidence of prosecution---Prosecution had failed to prove its case against the accused beyond reasonable doubt, therefore, the accused had to be acquitted even if she had taken a plea and thereby admitted killing the deceased---Conviction of accused was set aside.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----Ss. 154 & 342---Case of two versions---One version set out in FIR and brought on record through prosecution and second one having been brought on record by the statement of accused under S. 342, Cr.P.C., court was required to anlayse the prosecution version first in order to ascertain its truthfulness or otherwise.

Ashiq Hussain v. State PLD 1994 SC 879 and Amin Ali v. The State 2011 SCMR 323 rel.

(d) Criminal trial---

----Medical evidence---Evidentiary value---Medical evidence was a supporting piece of evidence which might confirm the ocular account with regard to receipt of injury, nature of injury, kind of weapon used in the occurrence but it would not tell the name of the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

Muhammad Usman Sharif Khosa for Appellant with Appellant in person.

Sarfraz Ahmad Khan Khichi, Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

2017 P Cr. L J 1435

[Lahore]

Before Abdul Sami Khan and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD SAFEER and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 100-J and 501 of 2012 and Capital Sentence Reference No. 9-T of 2012, heard on 3rd October, 2016.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence---Benefit of doubt---Supplementary statement---Evidentiary value---Allegation against accused was that he along with co-accused abducted the minor son of complainant for ransom and thereafter committed his murder---Accused was not named in FIR---Complainant had neither expressed suspicion of abduction of the deceased by any body nor he had mentioned that his son was abducted for heavy ransom---Dead body of the deceased was found from a street after two days of his abduction---Complainant, on the third day was informed by the prosecution witness that he had seen the deceased in the company of accused but accused had been introduced in this case after five days of registration of case through supplementary statement---No explanation was available as to why complainant kept mum for two days after getting information about the alleged involvement of accused in the crime---No source of information had been mentioned in supplementary statement---Such supplementary statement without source of information had no value in the eyes of law---Circumstances and facts cast serious doubt in the statement of complainant, thus reliance could not be placed on his statement to maintain conviction of the accused in the present case---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

Naeem Akhtar v. The State 1996 SCMR 511 and Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence---Extra-judicial confession---Scope---Benefit of doubt---Story as narrated by the complainant, was that his minor son was allegedly abducted by the accused and co-accused for ransom but he was murdered by them---Accused had allegedly made extra-judicial confession before the prosecution witness---Accused had made confession before prosecution witness who was not familiar to the accused could not be believed, in such eventuality, it did not appeal to a prudent mind as to why the accused chose said prosecution witness to express his secret before him to whom he did not know prior to the occurrence, knowing that his such confession would take him to gallows---Admittedly, said witness had good business relation with the father of the complainant, therefore he was interested witness in the case---Circumstances showed that prosecution had manufactured extra-judicial confession in the case to strengthen the case against accused---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

(c) Criminal trial---

----Interested witness, evidence of---Scope---Evidence of an interested witness could only be relied upon when the same was corroborated by an independent and impartial evidence.

(d) Criminal trial---

----Extra-judicial confession---Scope---Conviction on the basis of extra-judicial confession without corroboration could not be awarded.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence---Last seen evidence---Scope---Benefit of doubt---Prosecution witness had alleged that he and another person (neighbour) of father of complainant had seen the deceased child in the company of accused on the relevant evening---Prosecution had not produced the said neighbour before the court in support of last seen evidence---Said witness was a related witness being from the same family and in the same business the father of victim was doing---Statement of said witness under S. 161, Cr.P.C. was recorded after six days of the occurrence and no explanation was on record to show as to why he kept quiet for six days---Circumstances created doubt about the veracity of prosecution story, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; 2010 SCMR 584; 1998 SCMR 570 and 1993 SCMR 550 rel.

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

----S. 161---Belated statement of witness---Effect---Belated statement recorded under S. 161, Cr.P.C. unless delay was validly explained by the witness or prosecution, had little value in the eyes of law---Such witness could not be believed.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence---Recovery of different articles from accused---Reliance---Two articles (locket and shoes) belonging to the deceased were recovered from the accused---Complainant was present at the time of recovery of dead body of the deceased but he had not stated that dead body was recovered without shoes---Complainant had not mentioned in the FIR that his son was wearing locket when he disappeared---Deadbody of the deceased was neither recovered from the exclusive possession of the accused nor on his pointation or disclosure---Said recoveries were not sufficient to maintain conviction of the accused in the present case---Accused was acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Medical evidence only describe the physical position of dead body when the same was recovered, and did not point out any clue or connection of accused with the commission of offence---Such evidence was used for the confirmation of ocular evidence with regard to receipt of injury, time of occurrence and weapon of offence---Medical evidence did not itself constitute any corroboration about the identity of an accused to prove his culpability---Report of Chemical Examiner with regard to swabs was showed that the deceased was murdered after committing sodomy with him---Prosecution to give heinous touch to the occurrence had tried to introduce abduction and demand of ransom---Prosecution had not procured any evidence about sodomy---No report of DNA regarding matching of semen was placed on record---Admittedly, neither the ransom had been demanded in the present case nor the same had been paid---Prosecution by exaggerating the matter and converting the case of sodomy and murder into abduction for ransom and murder, resulting that medical evidence did not support the case of prosecution---Accused was acquitted, in circumstances by setting aside conviction and sentences recorded by Trial Court.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., causing disappearance of evidence of offence, or giving false information, act of terrorism---Appreciation of evidence----Benefit of doubt---Prosecution witnesses who furnished evidence of last seen and extra-judicial confession were previously known to the complainant and his father, they were interested and related witnesses---Evidence of said witnesses had not been supported or corroborated by any independent witness---Other witnesses of extra-judicial confession and last-seen evidence had not been produced by the prosecution, therefore, adverse inference could be drawn under Art. 129(g) of Qanun-e-Shahadat, 1984 that had the said persons been produced before the Trial Court, they would not have supported the prosecution case---Circumstances established that considerable doubt regarding the veracity of the evidence of both the prosecution witnesses had been created, benefit of which would resolve in favour of accused---Accused was acquitted, in circumstances by setting aside conviction and sentences recorded by Trial Court.

(j) Criminal trial---

----Circumstantial evidence---Scope---Chain of circumstances, should be so strong and solid that one end should start right from the toe of the deceased to encircle a dense grip around the neck of the accused on the other side---Slight break in the chain of circumstances would definitely make the grip of chain loose and break the geometrical progression of the chain.

(k) Criminal trial---

----Benefit of doubt---Scope---Only one circumstance, creating doubt in the prosecution case was enough to acquit the accused.

2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 320 rel.

Barrister Muhammad Usman Ghani for Appellant.

Tariq Javed, District Public Prosecutor for the State.

Ch. Saeed Ahmad for the Complainant.

2017 P Cr. L J 1483

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

Mst. AAJZAN BIBI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1910 of 2012 and Murder Reference No. 20 of 2013, heard on 6th October, 2016.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Chance witness---Motive---Benefit of doubt---Accused lady was convicted by Trial Court for committing murder of her two minor sons for having strained relations with her husband and she was sentenced to death on two counts---Trial Court convicted accused on testimony of chance witnesses whereas husband of accused was given up---Validity---If accused had to murder deceased, then she did not have to wait for arrival of prosecution witnesses for throwing both the deceased in swamp---Presence of eyewitnesses at the spot at relevant time was doubtful in nature because if they were present at the spot at relevant time, they would have tried to rescue both the deceased or to catch hold of accused, who was not armed with any firearm to ward eyewitnesses off or to keep them away at the time of incident---Presence of both eyewitnesses at spot at relevant time was not free from doubt---If there was any strained relations between accused and her husband, target would have been her husband instead of her deceased sons---Husband of accused was star witness of motive but he was not produced before Trial Court and was given up being unnecessary---Prosecution failed to prove motive to commit murder---High Court extended benefit of doubt to accused and set aside conviction and sentence awarded to her by Trial Court and acquitted her of the charge---Appeal was allowed in circumstances.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Muhammad Riaz v. The State 2009 PCr.LJ 1022; Irshad Ahmed v. The State 2011 SCMR 1190 and Nazeer Ahmed v. The State 2016 SCMR 1628 ref.

(b) Criminal trial---

----Medical evidence--- Value--- Medical evidence cannot point an accusing finger towards any of the culprits implicated in case.

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates doubt regarding prosecution case, the same is sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Zafar Hussain Ch. for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2017 P Cr. L J 1516

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

NAEEM SHAHZAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 858 of 2009, heard on 21st October, 2016.

(a) Emigration Ordinance (XVII of 1979)---

----Ss. 17 & 22---Unlawful emigration, receiving money for foreign employment---Appreciation of evidence---Accused was alleged to have received money from the complainant to send his son to a specific country for employment but later on sent him to a different country and on his return, when complainant demanded his amount, the accused refused to do so---Accused at his own got recorded confessional statement before the Trial Court and despite issuing of a show cause notice by the Trial Court, he owned the same, meaning thereby the confessional statement of the accused was volunteer---Trial Court, in circumstances, had rightly sentenced for imprisonment for the period already undergone on the basis of his volunteer confession---Appeal was dismissed accordingly.

(b) Confession---

----Juristic interpretation---Confession means a statement made by an accused which must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence.

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

----Art. 37---Retracted confession---Scope---Retraction of confession would become wholly immaterial once it was found that it was voluntary as well as true.

Joygun Bibi v. The State PLD 1960 SC 313; Manjeet Singh v. The State PLD 2006 SC 30 and Muhammad Amin v. The State PLD 2006 SC 219 rel.

Ms. Gulzar Begum Butt for Appellant.

Muhammad Ishaque, DPG for the State.

2017 P Cr. L J 1543

[Lahore]

Before Erum Sajad Gull, J

AAMIR IQBAL KHAN---Petitioner

Versus

MUHAMMAD YAQOOB JAURA and others---Respondents

Crl. P.S.L.A. No. 59 of 2015, decided on 21st January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 417(2)(3)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Limitation Act (IX of 1908), Ss.5 & 29---Qatl-i-amd and rioting armed with deadly weapons---Appeal against acquittal---Private complainant---Condonation of delay---Complainant filed private complaint against accused persons but they were acquitted by Trial Court---Criminal petition for special leave to appeal was filed by complainant beyond period of limitation---Complainant sought condonation of delay on the ground that there was delay in providing of certified copy of judgment and due to winter vacations the appeal was filed after vacations---Validity---Provisions of S. 417(2)(3), Cr.P.C. were applicable to the case of complainant for which stipulated period of limitation was sixty days for filing of criminal petition for special leave to appeal---Judgment was passed on 18-10-2011 according to which sixty days lapsed on 16-12-2011, as envisaged under S. 417(3), Cr.P.C. but criminal petition for special leave to appeal was filed on 13-1-2012---Winter vacations of High Court for the year, 2011 began on 25-12-2011 and first regular working day of High Court was 8-1-2012---Nothing was available on record to substantiate the plea of complainant regarding delay in supply of certified copy of judgment---No allegation was levelled against acquitted accused to the effect that they created a hurdle or threatened complainant not to file criminal petition for special leave to appeal due to which the petition could not be filed within the prescribed period of sixty days---High Court declined to condone the delay caused in filing of criminal petition for special leave to appeal---Appeal was dismissed in circumstances.

Muhammad Sharif and others v. The State and others 2005 MLD 1333; Qamar uz Zaman and another v. Haji Allah Bakhsh and another 2012 SCMR 1281; The State v. Syed Ali Baqar Naqvi and others 2014 SCMR 671 and Fakhar-ud-Din v. Fazal Karim and others 1999 SCMR 795 rel.

2017 P Cr. L J 1556

[Lahore]

Before Shahid Hameed Dar, J

TARIQ---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No. 10214-B of 2016, decided on 21st September, 2016.

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

----Ss. 497 & 498---"Post-arrest bail" and "bail before arrest"--- Considerations---Considerations for post arrest bail were altogether different from those, needed for bail before arrest, but in a situation, where circumstances almost remained unchanged, even after dismissal of application for bail before arrest and resultant arrest of accused, the observations previously recorded on merits might not lose its efficacy and relevance.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 365-B & 376(2)---Kidnapping, abducting or inducing woman to compel for marriage etc., rape by two or more persons---Bail, refusal of---Accused's application for bail before arrest was dismissed on 14.04.2016 and Challan against him was prepared by the police on 15.04.2016 for submitting to Trial Court---Police virtually conducted no investigation at all, after they arrested accused on rejection of his pre-arrest bail application---Alleged abductee was a married lady and mother of three children who categorically contended before police under S. 161, Cr.P.C. on 27-11-2015 and before the area Magistrate under S. 164, Cr.P.C. on 12.12.2015 that she had been gang raped by accused and his co-accused, which offence entailed capital punishment---Abductee reiterated said stance when she appeared before lady medical officer for her medical examination on 28.11.2015---Eye-witnesses supported the prosecution case---High Court observed that dispatch of the lady to Dar-ul-Aman and sojourn threat was a circumstance which might better be taken care of by Trial Court during the course of trial---Present case could not be considered a case of further inquiry in favour of accused within mischief of S. 497(2), Cr.P.C.---Bail was refused accordingly.

Khalid Aseer Chaudhary for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab with Wali Muhammad, S.-I. for the State.

2017 P Cr. L J 1563

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MEENA GUL alias YASMIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 33, 51, Criminal Revision No. 26 and Murder Reference No. 16 of 2013, heard on 17th January, 2017.

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

----Ss. 302 & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that son of complainant ran a grocery outlet, accused being customer used to avail credit---Deceased declined to sell items on credit to the accused which resulted into altercation---Deceased, on the asking of accused visited her house at night in order to clear the liabilities---Accused along with co-accused made firing on the deceased---Witnesses had seen the deceased in a pool of blood---Deceased, critically injured informed the witnesses that accused along with co-accused had committed the offence---Circumstances of the case showed that it was extremely improbable that the accused would ask the deceased to enter her house within the view of witnesses and shortly thereafter she had to commit murder of the deceased was far from being expedient---Sole eye-witness had admittedly not seen the incident of firing, he only saw guns with the accused and acquitted co-accused---Query by witness and detailed response thereto by the deceased lying critical injured with six gunshots hitting almost every vital part of his body was a position, which showed a pinch of salt---Witness was reluctant to say as to what happened to the assailants subsequent to the incident---Said factors established a real possibility that none was present at the seen except for the deceased---Said witness had been disbelieved against the co-accused, placed inexorably in an identical position with the accused---Statement of said witness was self-destructive on material points---Circumstances established that improbability of presence of the solitary eye-witness at the scene, rejection of his statement against identically placed co-accused, visit the deceased at an odd hour of night to the accused for a purpose far from being indispensably urgent case a dark shadow of doubt on the genesis of prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Recovery of weapon of offence and positive Forensic Report---Effect---Seizure of pistol and positive Forensic Report did not advance prosecution case for even dated dispatch of casing with the weapon---Accused was acquitted by setting aside his conviction and sentence recorded by Trial Court.

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

----S. 342---Statement of accused under S.342, Cr.P.C.---Reliance---Statement of accused recorded under S. 342, Cr.P.C. was to be accepted or rejected in totality as it could not be sliced to favorably supported the charge.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Ch. Zulfiqar Anwar for Appellants.

Muhammad Ilyas Siddiqui for the Complainant.

Muhammad Usman Mirza, Deputy Prosecutor-General, Punjab with Tariq Manzoor, S.I. for the State.

2017 P Cr. L J 1591

[Lahore (Multan Bench)]

Before Abdul Sami Khan and Ch. Abdul Aziz, JJ

Mst. AMIRAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 1162 of 2010 and Murder Reference No. 20 of 2011, decided on 11th April, 2017.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was alleged to have slaughtered the deceased/brother of complainant through churri with the help of co-accused---Motive behind the occurrence was stated to be the illicit relations of accused with the daughter of deceased---Ocular account was furnished by the witnesses including complainant---Said showed that the alleged eye-witnesses were not in best of terms with the deceased as well as with the co-accused/wife of the deceased---Eye-witnesses had alleged that they were present outside the house of deceased at the time of occurrence but none of the eye-witnesses advanced any reasoning for their presence there and that too at the odd hours of the night---Such aspect coupled with the fact that the said witnesses were not in good terms with the deceased, made their presence outside the house of the deceased, dubious in nature---Court witness tried to supplement the ocular account furnished by eye-witnesses but the actual position was altogether different---Admittedly, court witness was inmate of the house where the occurrence took place, but she deposed that though she witnessed the occurrence but at the arrival of the police, she was locked in a room and was not permitted to interact either with the police or with the witnesses---Investigating Officer stated that he recorded the statement of court witness on the first day of the occurrence---Investigating Officer deposed that remaining witnesses had joined the investigation process and stated nothing about the involvement of the accused in the commission of crime---Record showed that co-accused/wife of the deceased had blamed that the nephews of the complainant had committed the murder of her husband; later on, after twenty five days of the occurrence, complainant/real brother of deceased moved application alleging therein that deceased was done to death by the accused persons---Complainant had claimed that occurrence was witnessed by him and his brothers---Nephews of complainant joined the investigation proceedings and were found innocent---Investigating Officer had concluded that offence was committed by the accused persons---Eye-witnesses, despite being present at the crime scene and that too in the company of numerous other relatives remained silent and uttered not a single word against the accused persons---Record was silent as to why the prosecution witnesses and their family members opted to remain mum for twenty five days---If at all, the prosecution version had some shred of truth, then the eye-witnesses should have protested for the false implication of the set of accused persons nominated by the present accused/wife of the deceased---Complainant was supposed to have implicated the accused persons on the very first day of the occurrence--Eye-witnesses claimed that they had seen the incident in the light of torch, but no such torch was taken into possession by the police---Circumstances established that the ocular account furnished by the eye-witnesses was not of the quality, whereupon the conviction could be awarded or upheld---Accused-appellants were acquitted in circum-stances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Prosecution case was that the accused slaughtered the deceased/brother of complainant through churri with the help of co-accused persons---Motive behind the occurrence was stated to be the illicit relations of accused with the daughter of deceased---Prosecution evidence showed that except the oral assertion of complainant, no other evidence was brought on record in support of the alleged motive---Neither complainant made reference to any specific incident nor produced any other witness in support of his claim of illicit relations of daughter of deceased with the accused---Eye-witness had not said a word regarding the alleged motive---Circumstances established that prosecution had failed to prove the motive.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Motive---Significance---Motive had its own importance in every case of murder and could be termed as back-bone of the prosecution case---Motive should be proved on the basis of some evidence and not through presumption---Failure to establish motive as set out in FIR was a factor, which would go against the prosecution---Prosecution, though was not obliged to prove the motive in each and every case, however, once the motive was setup, it must be established.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

(d) Criminal trial---

----Identification of accused---Torch light---Evidentiary value---Source of identification of accused through light of the torch was a weak type of source and unsafe to be relied upon.

Abdul Rahim v. Ali Bux and 4 others 2017 PCr.LJ 228 rel.

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

----Ss. 374 & 376---Power of High Court to confirm sentence on reference---Scope---High Court had ample powers to confirm the sentence or to pass any other appropriate sentence or to annul the conviction or even to order a new trial or on amended charge and to acquit the accused---Personal presence of the convict was not made mandatory by the legislatures---Reference under S. 374, Cr.P.C. even in the absence of the convict could be decided---Convict could not be penalized for abscondence alone and was entitled to complete justice.

Khanan Khan and others v. The State PLD 1966 (W.P.) Peshawar 232; Gul Hassan and another v. The State PLD 1969 SC 89; Hayat Bakhsh and others v. The State PLD 1981 SC 265; Mushtaq and 3 others v. The State 1989 PCr.LJ 2336 and Master Muhammad Younas and others v. The State 2006 MLD 378 rel.

Syed Badar Raza Gillani for Appellant.

Malik Muhammad Hashim for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

2017 P Cr. L J 1634

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

SALAMAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 495 of 2014, heard on 23rd November, 2015.

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

-----S. 9(c)--- Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Statement, delay in recording---Heroin weighing 3 kilograms was alleged to have been recovered from accused who was convicted by Trial Court and sentenced to imprisonment for seven years---Validity---Prosecution was unable to prove manner of seizing of samples---Seized articles were not handed over to Investigating Officer---Parcel of 100 grams heroin was received on 15.04.2011 and the same was deposited in the Office of Chemical Examiner---Statement under S. 161, Cr.P.C. of prosecution witness receiving sample was recorded on 13.08.2013---Investigating Officer had recorded statement of prosecution witness after a long gap and did not offer any explanation---Unexplained and unjustified long delay on the part of Investigating Officer in recording statement of material witness during investigation in case of narcotic substances, rendered the evidence of such witness unreliable---No proof was given by prosecution that seized articles were kept in safe custody and the same were handed over to Investigating Officer---Vital inconsistencies existed in prosecution case which could not be ignored---High Court set aside the findings recorded by Trial Court as the same suffered from legal infirmities and accused was acquitted of the charge---Appeal was allowed in circumstances.

Aish Bahadur Rana and Muhammad Zubair Bulqan for Appellant.

Muhammad Atif Rao, Deputy District Public Prosecutor for the State.

2017 P Cr. L J 1652

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin and Raja Shahid Mahmood Abbasi, JJ

TARIQ AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 49 of 2016, decided on 10th February, 2016.

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

----Ss. 9, 36 & 48---Possessing and trafficking narcotics---Appreciation of evidence---Report of Chemical Examiner---Application for fresh analysis of the contraband--- Dismissal of application---Appellant/accused, was found in possession of three cans, each containing twenty seven litres of Acetic Anhydrine, a contraband designated as psychotropic substance under the Control of Narcotic Substances Act, 1997---Trial was in progress, and evidence of recovery witnesses, had already been recorded; the Report of Chemical Examiner was before the court---Appellant, being dissatisfied with the report of Chemical Examiner, moved application for fresh analysis of the contraband for the purpose of determination of its chemical composition---Contention of appellant was that it would be in the interest of justice that the seized contraband be sent to any laboratory other than Punjab Forensic Science Agency---Validity---Prosecution of offences was a State attribute; State functionaries and institutions, were tasked to carry out the job; there was presumption of genuineness to such pursuits---Said powers could not be delegated to private enterprises chosen by a person confronting indictment---Any flaw or defect in the Forensic Report, could not be pressed into service for fresh analysis---Accused was not required to establish his innocence through such methodologies---Forensic analysis of the contraband, in the case, was undertaken soon after registration of the case; it was intriguing as to how the appellant became suspicious about the psychotropic character of the stuff attributed to him---Appellant having denied the charge, no onus was cast upon him within the contemplation of Art. 119 of the Qanun-e-Shahadat, 1984 to discharge any responsibility which could necessitate the proposed exercise---Appeal was dismissed.

2017 P Cr. L J 1664

[Lahore (Multan Bench)]

Before Hafiz Shahid Nadeem Kahloon, J

KHURSHEED AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 93 of 2010, heard on 1st December, 2015.

Penal Code (XLV of 1860)---

----S. 376(1)---Rape---Appreciation of evidence---Incest---Evidence of close relatives---Complainant was real daughter of accused who alleged that her father had been committing rape with her for the past six months---Trial Court convicted the accused and sentenced him to imprisonment for twenty five years---Validity---Ocular account and medical account proved that accused had been committing rape with her real daughter i.e. complainant for about six months back before registration of case--- Victim being immature was constrained to be tight lipped and when occurrence was witnessed by wife of accused (mother of complainant) she being sane condemned her husband and complained the same to her mother-in-law---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Sana Ullah Khan Tareen for Appellant.

Mirza Abid Majeed, D.P.-G. for the State.

Saif Ullah Khan for the Complainant.

2017 P Cr. L J 1703

[Lahore]

Before Muhammad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

LIAQAT ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 859 of 2011, 340 of 2015, 2281 of 2014 and Murder Reference No. 280 of 2011, heard on 10th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Qalt-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapons, common object---Appeal against acquittal---Appreciation of evidence---Probability, test of---Requirement---Case reported and FIR lodged before death of deceased---Promptitude in reporting the crime to police---Most of the accused acquitted on same set of evidence---Requirement of corroboration---Plea of political clout/influence, acceptance of---Twenty-three accused were alleged to have caused death of the deceased and injured an eyewitness by firearms shots over a land dispute---Trial Court, while acquitting seventeen co-accused, convicted the remaining and sentenced them to death as well as to undergo imprisonment up to five years along with payment of fine---Eye-witnesses had equally supported the prosecution case---Alleged incident had occurred in broad-daylight---Medical evidence had confirmed receipt of firearm injuries, both by the deceased and the injured eye-witness---Casings of bullets had been secured from the spot and sent to Forensic Science Laboratory prior to arrest of the accused---Weapons, recovered at the instance of the accused and dispatched subsequently, were wedded with the casings---Motive for the crime existed---Police contingent was present at the spot at time of occurrence---Said pieces of evidence were although formidable, but such immaculate precision alone fell short of the standard of proof required to visit the accused with ultimate corporal penalty---Such precision could be possibly manipulated, but happening of events occurring in the natural course of probability could not be manipulated---Unless testimonial rendition qualified the test of probability, the same could not be allowed to be made basis of conviction--¬-Examined on the touchstone of probability, prosecution case warranted serious consideration for more than one reasons---Uninterrupted assault by the accused in presence of heavy police contingent and their encircling the deceased and the prosecution witnesses with impunity to fatally gun down the deceased with subsequent safe conduct, was a scenario which required a pinch of salt---Receipt of multiple pellets injuries only by the deceased and the lone injured witness after taking refuge inside with no harm befalling upon others, was another question mark---Alleged occurrence appeared to have taken place not in the manner and at the place as unanimously asserted by the prosecution witnesses---Application for registration of the FIR was a computer generated document, which required skill and paraphernalia, which was not readily available, and time between the alleged occurrence and registration of the FIR was about half an hour only---FIR appeared to have chalked out at point of time before death of the deceased---Said promptitude had rather militated against the prosecution itself---Graphic details, given in the application with a meticulous exactitude, in terms of assignment of fire shots to the accused, in a crisis situation, was not possible---Two words, 'Najaiz' and 'Zabardasti' and name of one of the accused had been added subsequently, which depicted a capacity for the mischief---Prosecution evidence had been disbelieved regarding seventeen out of twenty-three accused, and the same, therefore, required independent corroboration, which was missing in the present case---Motive did not specifically revolve around the accused---Argument that political clout of complainant side was instrumental in managing the meticulous details of the prosecution case, was seemingly not beside the mark---Given the enormity of the sentence, every hypothesis of innocence of the accused must have been conclusively shown to have been excluded; whereas, the evidence, relied upon in the present case, fell short of that---Prosecution case appeared to have been exaggerated---High Court, extending benefit of doubt, acquitted all present accused persons and dismissed appeal filed against acquittal of other accused---Appeal was allowed accordingly.

Azam Nazir Tarrar, Nighat Saeed Mughal, Syed Tayyab Nasir Mehmood Jaffari, Ch. Imran Raza Chadhar and Barrister Haris Azmat for Appellants.

Muhammad Anwar Zahid for the Complainant.

Malik Muhammad Jafar, Deputy Prosecutor-General for the State.

2017 P Cr. L J 25

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

SHAH IZZAT alias SHAHZAD---Appellant

Versus

ADNAN, CONSTABLE NO. 5355 and another---Respondents

Cr. A. No. 238-P of 2012, decided on 29th January, 2015.

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

----S. 7(a)(c)(h)---Pakistan Arms Ordinance (XX of 1965), S.13---Act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Star witnesses, who were allegedly present on the spot at the relevant time; and sustained injuries from the firing of accused, their statements were not trustworthy---Prosecution had also failed to conduct identification parade of accused through injured prosecution witness---Lot of improvements and contradictions were made in the report of other star witnesses---Material contradictions were noticed in the statements of other prosecution witnesses---Arrest of accused was also doubtful, as no source had been given by the prosecution witnesses, as to who informed them about coming of accused; and how they identified him---Identification parade of accused had got no value as it had been conducted after 7 days of arrest of accused, without offering any explanation for such delay---Kind of weapon had not been mentioned by the complainant in his report---Non-specification of weapon in the hand of accused, reflected doubt regarding the presence of the complainant at the spot---Fifteen empties were recovered from the places, but it was not clear as to with whose fire shot the deceased was hit---Said empties were not sent on the same day to Forensic Science Laboratory, but were sent along with pistol recovered from possession of accused three days of their recovery---No finger prints on the pistols recovered, had been found, nor the same were sent to the Finger Prints Expert for opinion in order to strengthen the prosecution case---Blood of accused, and that of recovered from the spot, had also not been sent for comparison/matching the same in order to dig out the actual truth---No specific point of accused had been mentioned in the site plan---Name of accused was not mentioned in the site plan, which could establish his presence on the spot at relevant time---Many other material contradictions and loop-holes were in the prosecution case---Prosecution case was full of doubts, benefit of which would go to accused---Trial Court had not properly appreciated the evidence available before it by convicting accused through impugned judgment which needed interference by High Court---Conviction and sentence awarded to accused by the Trial Court, were set aside, he was acquitted of the charges levelled against him, and he was released, in circumstances.

Bhani Bakhsh v. The State 2006 PCr.LJ 1671; Ghulam Hussain and others v. The State 2005 YLR 405 and Ashiq Hussain v. The State 1993 SCMR 417 ref.

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

----Art. 129(g)---Withholding of available evidence---If a best piece of evidence, was available with a party; and same was withheld by him, then it would be presumed that the party had some evil motive behind it in not producing the said evidence---Presumption under illustration (g) to Art.129 of Qanun-e-Shahadat, 1984 could fairly be drawn in the matter.

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

----S.154---Registration of case---Mere registration of case could not be based for conviction in capital offence, where otherwise no strong, confident and corroborative evidence, was available against accused, which made the case of accused that of further inquiry.

Ishtiaq Ibrahim and Hizar Hayat for Appellant.

Syed Sikandar Hayat, A.A.G. for Respondents.

2017 P Cr. L J 71

[Peshawar]

Before Qaiser Rashid Khan and Syed Afsar Shah, JJ

FAZAL MAJEED---Appellant

Versus

MUHAMMAD AMAR and another---Respondents

Criminal A. No. 540-P of 2014 with Murder Reference No.14 of 2014, decided on 15th December, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime weapon and empties, matching of---Accused was caught red-handed---Immediately with pistol which he used to commit murder of the deceased---Prosecution case through promptly lodged FIR was confidence inspiring---Ocular testimony, recovery of crime empties from spot, supportive medical evidence, arrest of accused within a short span of 50 minutes, recovery of crime pistol giving freshly fired smell and positive reports of firearms expert was proved against accused---Trial Court had rightly convicted and sentenced the accused---High Court declined to interfere in the conviction and sentence awarded by the Trial Court---Appeal was dismissed in circumstances.

Sharafat Ali v. The State 1999 SCMR 329 rel.

Muhammad Arif Khan for Appellant.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Sohail Akhtar for the Complainant.

2017 P Cr. L J 96

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SAMINA BUKHARI---Petitioner

Versus

MUHAMMAD JAVED ABBASI and others---Respondents

W.P. No. 1067-A of 2015, decided on 11th February, 2016.

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

----Ss. 54, 154, 156 & 157---Arrest---Principle---Law vests an absolute discretion in a police officer, under S. 54, Cr.P.C., to arrest a person accused of commission of cognizable offence without a warrant or conversely dispense with arrest of such person which in any case, is not an essential prerequisite for conduct of investigation into a cognizable case under S.156, Cr.P.C. or into a case where cognizable offence is only suspected under S. 157, Cr.P.C.

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

----Ss. 22-A, 22-B, 54, 154, 156 & 157---Registration of case---Arrest of accused---Principle---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace directing police to register FIR against her---Validity---No illegality or legal infirmity was discernable from order of Ex-Officio Justice of Peace to warrant interference by High Court in its Constitutional jurisdiction---Not incumbent upon police to embark on harassment and arrest of a person against whom even allegation of commission of cognizable offence was levelled simply because that was neither a requirement of law nor a sine qua non for a just and fair investigation--- Constitutional Petition was dismissed under circumstances.

Fazal-i-Haq Abbasi for Petitioner.

Abdul Saboor Khan and Muhammad Naeem Abbasi, A.A.G. for Respondents.

2017 P Cr. L J 130

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

NASIR KHAN---Petitioner

Versus

QASIM KHAN and another---Respondents

Bail Application No. 323-B of 2015, decided on 4th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 34---Attempt to commit qatl-i-amd---Bail, refusal of---Co-accused had been acquitted by the Trial Court---Accused, who went abroad after more than two months of registration of case and house search, remained absconder wilfully for a considerable long period of four years; and after acquittal of his co-accused, he surrendered himself---Accused who absconded after the occurrence for noticeable period, would not be invariably entitled to bail merely because his co-accused had been acquitted in the case---Evidence recorded in absence of accused, could not be taken into consideration, either at bail stage, nor during trial; as the fate of accused would be decided on the evidence recorded in his presence---Accused was directly charged in the FIR by the complainant---Injury, which resulted into amputation of right foot of the complainant above his ankle; recoveries of two empties from the side of accused; motive and ocular account of eye-witness, supported the complainant's version for commission of offence by accused, which offence fell within the prohibitory clause of S.497, Cr.P.C.---Investigation in the case was complete, and trial was ready for commencement in the near future---Reasonable grounds existed for believing that accused had committed the offence---Petition for grant of bail, stood dismissed, in circumstances.

Atlas Khan v. Mazamullah Khan and another 1989 PCr.LJ 2044 and Sardar v. State PLD 1979 Pesh. 16 ref.

M. Sadeeq Khan for Petitioner.

Shah Hussain Khan for Respondents.

Qudrat Ullah Khan, A.A.G. for the State.

2017 P Cr. L J 167

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

BARKAT HAYAT---Petitioner

Versus

STATE through Additional Advocate-General Peshawar High Court, Mingora Bench, Swat and another---Respondents

Cr. M. Quashment Petition No. 4-M of 2016, decided on 4th May, 2016.

Penal Code (XLV of 1860)---

----S. 489-F---Civil Procedure Code (V of 1908), S. 12---Criminal Procedure Code (V of 1898), S. 561-A---Dishonestly issuing cheque---Sine die adjournment of criminal case during pendency of civil suit---Permissibility---Application under S. 561-A, Cr.P.C.---Petitioner had lodged the FIR against the dishonouring of the cheque against the respondent/accused, who had filed the suit for specific performance of the agreement against the petitioner---No provision of law existed which provided that both the cases could not have been put to trial at the same time---Courts below, therefore, had rightly disallowed the application for sine die adjournment of the criminal case---Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Seema Afreed and others v. The State and another 2008 SCMR 839 rel.

Aziz Muhammad for Petitioner.

Rafiq Ahmad, A.A.-G. and Wilayat Ali Khan for the State.

2017 P Cr. L J 235

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

BAKHT SHAD---Appellant

Versus

The STATE through Additional Advocate-General and another---Respondents

Cr. A. No. 76-M of 2013, decided on 19th January, 2016.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Evidence, improvements in---Withholding of witnesses---Presumption---Recovery of weapon---Complainant did not mention name of informer but later on stated that person who appeared as prosecution witness was informer of the occurrence---Contents of FIR and statements of prosecution witnesses were not in conformity---Improvements in case were deliberate and dishonest, cast serious doubts on the veracity of witnesses---Statements of such prosecution witnesses could not be relied upon--- Court could fairly draw a presumption under illust. (g) of Art.129 of Qanun-e-Shahadat, 1984, that had the second eye-witness been examined in Court his evidence would have been un-favourable to prosecution---When prosecution failed to connect accused with occurrence through convincing evidence, recovery of crime weapon became doubtful---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge--- Appeal was allowed in circumstances.

PLD 1982 SC 429; 1990 PCr.LJ 1607; 2010 SCMR 846; PLJ 2012 Cr.C (Lahore) 875; PLJ 2012 Cr.C (Lahore) 860; 2008 SCMR 158 and 2006 YLR 1317 distinguished.

2010 SCMR 846; 2009 SCMR 230 and 2008 SCMR 6 rel.

2010 SCMR 1791; PLD 2005 SC 288; 2000 SCMR 1758; 2008 SCMR 1623; 2009 SCMR 99; 2005 SCMR 1958; 2004 SCMR 477; PLD 2004 SC 663; 2003 SCMR 668; 2011 SCMR 1354 and 2000 SCMR 1805 ref.

(b) Criminal trial---

----Alibi, plea of---Effect---Onus of proving affirmatively his alibi does not lie on the accused and in the sense onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.

PLD 1982 SC 429 rel.

(c) Criminal trial---

----Evidence---Single eye-witness---Effect---Conviction of accused can be recorded on sole testimony of single eye witness, provided his deposition is corroborated by other circumstantial evidence collected by prosecution.

Sher Muhammad Khan for Appellant.

Rafiq Ahmad, Assistant Advocate-General for the State.

Naeemuddin for Respondent No.2.

2017 P Cr. L J 278

[Peshawar]

Before Assadullah Khan Chamkani, J

ABDULLAH KHAN alias AMANAT---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No. 2027-P of 2015, decided on 20th November, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 427 & 34---Constitution of Pakistan, Art. 201---Attempt to commit qatl-i-amd; mischief causing damage to the amount of fifty rupees; common intention---Bail, grant of---Consistency, rule of---Applicability---Rule of consistency not applied by lower court---Constitutional duty of the subordinate judiciary to follow precedent of superior Courts emphasized by High Court---No one had sustained any injury in the alleged incident---Co-accused person, whose case was not on different footing from that of the present accused, had already been granted bail by the court below---Present accused was, therefore, also entitled to bail on basis of the rule of consistency---Accused had specifically agitated the applicability of the rule of consistency before the Additional Sessions Judge, but there were no findings of the court on the said ground---Court below, while passing a cyclostyle order regarding rejection of bail, had rejected the bail application of the present accused, without caring and following the judgment of the High Court (whereby, the co-accused had been granted bail)---Court below, having decided to decline bail to the present accused, at least, should have differentiated his case from that of the co-accused, but no such findings had been given in the impugned bail refusing order---High Court observed that such illegal practice would not be repeated in the future by the subordinate judiciary---Bail application was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 201---Decision of High Court binding on subordinate courts---Judgments of the superior courts, under the Constitution, being binding on the subordinate courts, are to be followed as precedents strictly in cases having identical facts and circumstances---Deviation from judgments of superior courts, on one hand, would be against the very spirit of the Constitution, and on the other hand, the same would increase the burden of cases on the superior courts.

Asfandyar Khan for Petitioner.

S. Qaiser Ali Shah, A.A.-G. for the State.

2017 P Cr. L J 294

[Peshawar]

Before Assadullah Khan Chamkani, J

ZESHAN---Petitioner

Versus

MANZOOR AMAN and another---Respondents

Criminal Revision No. 83-P of 2015, decided on 16th February, 2016.

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

----Ss. 540 & 265-F---Power to summon material witness or examine person present---Scope---Interpretation of S. 265-F, Cr.P.C.---In terms of S. 265-F(2), Cr.P.C., the court, having ascertained from the Public Prosecutor or from the complainant the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, would summon such person to give evidence before it---Section 265-F(7), Cr.P.C. even granted a right to the accused to apply for summoning any witness and production of documents---Section 265-F, Cr.P.C. had been added in the Code in order to ensure the concept of a fair trial and to achieve that purpose, equal opportunity had been provided to both, the accused and the prosecution for summoning the evidence---Section 265-F, Cr.P.C. did not provide specifically that only those witnesses could be examined whose statements had been recorded under S. 161, Cr.P.C or their names had been mentioned in the challan in the column of witnesses---Under S. 265-F, Cr.P.C., the Trial Court was not bound to record the statements of only those witnesses who had been listed in the calendar of witnesses---Trial Court, in terms of S. 540, Cr.P.C., on the other hand, could summon a material witness even if his/her name did not appear in the column of witnesses of the challan, provided their evidence was deemed essential by the court for the right decision of the case---In the present case, dispute over a woman had been alleged to be the motive behind the incident, and said women, who had been summoned as a witness on the application of the complainant, was the wife of the complainant and sister of the accused---Name of said woman/witness although was not mentioned in the column of witnesses of the challan, but keeping in view the peculiar facts and circumstances, particularly the motive part, she was a material witness and had been rightly summoned as such---Examination of said witness would not prejudice the defence, as equal opportunity of cross-examination would be provided to the defence---Impugned order, being well reasoned and based on law on the subject, was not open to any interference by the High Court in its revisional jurisdiction---Revision was dismissed accordingly.

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

----S. 540----Power to summon material witness or examine person present---Scope---Powers to be exercised by the court under S. 540, Cr.P.C. are divided into two parts; first part is discretionary in nature, under which the court can summon any person as a witness either suo motu or on an application while, the second is mandatory, according to which powers to summon, examine, recall or re-examine any person as a witness are to be exercised with due care and great caution and some convincing evidence or material available on the record must exist which make the examination of a particular person essential for the just decision of the case.

Taimur Haider for Petitioner.

M. Riaz Khan Painda Khel, AAG for the State.

Mehboob Shah for Respondent No.1.

2017 P Cr. L J 316

[Peshawar]

Before Ikramullah Khan, J

Messrs NIB BANK LIMITED through Authorized Officer/General Attorney---Petitioner

Versus

Mian WISAL BACHA and 2 others---Respondents

Q.P. No. 137-P of 2015, decided on 18th July, 2016.

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

----Ss. 51, 523 & 550---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 3---Finance facility extended to customer by Financial Institution for vehicle---Civil dispute---Seizure of property (vehicle) on default---Scope---Police may seize any property taken under S. 51, Cr.P.C. or stolen or regarding which any offence appeared to have been committed or which appeared to have been used for the commission of the offence---Such power could not be exercised to settle a civil dispute between parties by seizing a vehicle or any other property not either stolen, suspected to be stolen or recovered from an accused---Court shall not legalize the unlawful exercise of power by police or to secure or recover the finance facility extended to a customer by any financial institution---Petition was disposed of by handing over the vehicle to the respondent/customer.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 3---Criminal Procedure Code (V of 1898), S. 561-A, 523 & 550---Finance facility extended to customer by Financial Institution---Default---Seizure of vehicle by Financial Institution---Validity---Criminal and Civil proceedings against the defaulter---Financial institution may proceed against the defaulter/customer in competent court of law for civil or criminal proceeding subject to any civil or criminal liability that the customer may incur under the contract or rules or any other law for the time being in force---Petitioner/Financial institution instead of invoking the jurisdiction of Banking Court opted to initiate criminal proceeding in term of Ss. 523/550 of Cr.P.C.---Quashment petition was disposed of by handing over the vehicle to the customer accordingly.

Shafiullah Khan for Petitioner.

Mujahid Ali Khan, A.A.-G. for the State.

2017 P Cr. L J 335

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan and Haider Ali Khan, JJ

MUHAMMAD NOMAN---Appellant

Versus

The STATE---Respondent

Cr. A. No. 19-D of 2016, decided on 15th June, 2016.

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

----Ss. 9(c), 21 & 22---Criminal Procedure Code (V of 1898), S. 537---Allegedly five KG charas garda was recovered from the possession of accused---Case was registered by the Assistant Sub-Inspector, who was not competent---Accused was apprehended by Sub-Inspector and on his report, case was registered by Assistant Sub Inspector, therefore S. 21 had not been violated---Sections 21 & 22 of the Act were directory in nature---Non-compliance of said sections would be an irregularity, which could be cured under S. 537, Cr.P.C.---Non-compliance of Ss.21 & 22 of the Act would not cause prejudice to the case of accused.

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

----S. 9(c)--- Possession of narcotic substance--- Appreciation of evidence---Prosecution case was that four packets of 1250 grams each, total five KG charas garda were recovered from the possession of accused---Prosecution proved its case by producing eye as well as recovery witnesses---Marginal witnesses of recovery memo were unanimous about recovery of substance---Other prosecution witnesses also supported the prosecution version---Recovered substance was proved to be charas by the positive report of chemical analysis---Appeal against conviction was dismissed accordingly, however keeping in view very young age of accused (19 years), his sentence of 12 years was reduced to six years---Order accordingly.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses, competency of---Principles---Four packets, each containing 1250 grams charas garda were recovered from the possession of accused---Prosecution witnesses were police officials---Contention was that private witness had been associated at the time of alleged recovery---Private persons would not indulge themselves, in such cases, due to the fear of enmity and to avoid protracted trial proceedings---Police officials were as good witnesses as other witnesses, unless any ill will, grudge or enmity with the accused was shown on their part---Appeal against conviction was dismissed accordingly, however keeping in view very young age of accused (19 years), his sentence of 12 years was reduced to six years---Order accordingly.

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

----S. 9(c)--- Possession of narcotic substance---Appreciation of evidence---Sentence, reduction in---Four packets, each containing 1250 grams charas garda were recovered from the possession of accused---Accused was only 19 years old at the time of commission of offence---Appeal against conviction was dismissed, however keeping in view very young age of accused, his sentence of twelve years was reduced to six years---Order accordingly.

(e) Witness---

----Police official as witness---Police official being public servant was as good witness as any other private person unless it was proved that he had personal ill will, enmity and grudge against the culprit.

Haji Muhammad Shakeel for Appellant.

Hashmatur Rahman, Standing counsel for the State.

2017 P Cr. L J 397

[Peshawar]

Before Yahya Afridi, J

MOHSIN IHSAN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B. A. No. 3005-P of 2016 with Cr. M. Nos. 237 and 246-P of 2016, decided on 16th December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 409, 419, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---National Database and Registration Authorities Ordinance (VIII of 2000), S.30---Foreigners Act (XXXI of 1946), S. 14---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, concealing and refusing to furnish information which a person ought to disclose or furnish etc., contravention of provisions of law or any order made there under and corruption---Public servant committed or attempt to commit criminal misconduct---Bail, grant of---Further inquiry---Prosecution case against the accused was that accused along with co-accused, illegally processed Computerized National Identity Card of non-nationals by introducing them as family members of Pakistan citizens---Offences with which accused was charged, did not fall within the prohibitory clause of S. 497, Cr.P.C.---Record showed that investigation was not complete and required further time---Attending circumstances suggested that criminal culpability and role of the accused would be adjudged at the time of trial---Accused was allowed bail in circumstances.

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

----S. 497---Bail---Principle---Observations made in bail granting order were tentative in nature and Trial Court would not consider such observations while deciding case on merit.

Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1854 rel.

Arshad Hussain Yousafzai for Petitioner.

Farhad Ali, Standing Counsel for the State.

2017 P Cr. L J 428

[Peshawar]

Before Ikramullah Khan, J

Messrs NIB BANK LIMITED through Authorized Officer/General Attorney---Petitioner

Versus

Mian WISAL BACHA and 2 others---Respondents

Q.P. No. 137-P of 2015, decided on 18th July, 2016.

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

----Ss. 51, 523 & 550---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 3---Finance facility extended to customer by Financial Institution for vehicle---Civil dispute---Seizure of property (vehicle) on default---Scope---Police may seize any property taken under S. 51, Cr.P.C. or stolen or regarding which any offence appeared to have been committed or which appeared to have been used for the commission of the offence---Such power could not be exercised to settle a civil dispute between parties by seizing a vehicle or any other property not either stolen, suspected to be stolen or recovered from an accused---Court shall not legalize the unlawful exercise of power by police or to secure or recover the finance facility extended to a customer by any financial institution---Petition was disposed of by handing over the vehicle to the respondent/customer.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 3--- Criminal Procedure Code (V of 1898), Ss. 561-A, 523 & 550---Finance facility extended to customer by Financial Institution---Default---Seizure of vehicle by Financial Institution---Validity---Criminal and civil proceedings against the defaulter---Financial institution may proceed against the defaulter/customer in competent court of law for civil or criminal proceeding subject to any civil or criminal liability that the customer may incur under the contract or rules or any other law for the time being in force---Petitioner/Financial institution instead of invoking the jurisdiction of Banking Court opted to initiate criminal proceeding in term of Ss. 523/550 of Cr.P.C.---Quashment petition was disposed of by handing over the vehicle to the customer accordingly.

Shafiullah Khan for Petitioner.

Mujahid Ali Khan, AAG for the State.

2017 P Cr. L J 438

[Peshawar]

Before Syed Afsar Shah, J

HAROON KHAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Misc. No. 3009-P of 2016, decided on 2nd January, 2017.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substance---Bail, refusal of---Prosecution story was that 8400 grams charas was recovered from the vehicle driven by accused and co-accused was accompanying him in the vehicle---Accused being driver of the vehicle had its full control, as such, he could not be exonerated from the liability---Reasonable grounds existed for believing that accused had committed an offence, which fell within the restrictive limbs of S. 497(1), Cr.P.C.---Bail was declined to the extent of accused.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substance---Bail, grant of---Further inquiry---Prosecution story was that 8400 grams charas was recovered from the vehicle driven by accused and co-accused was accompanying the accused in the vehicle---Co-accused was sitting in the vehicle and to see as to whether he had conscious knowledge about the concealment of narcotics in the vehicle in which, he was sitting, was the question, which was to be determined by the Trial Court after recording evidence---Case of co-accused was that of further inquiry---Co-accused was allowed bail in circumstances.

Arshad Hussain Yousafzai for Petitioners.

Moeen ud Din Humayun, AAG for the State.

2017 P Cr. L J 463

[Peshawar]

Before Nisar Hussain Khan, J

QASIM MAHMOOD---Petitioner

Versus

The STATE---Respondent

Q.P. No. 129-P of 2016, decided on 21st November, 2016.

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

----Ss. 408 & 439-A---Appeal and revision, consolidation of---Procedural law---Scope and object---No provision in the Cr.P.C., existed which specifically barred disposal of appeal against conviction and revision for enhancement of punishment, through common judgment---General rule of law was that whatever was not prohibited, was permissible---Procedural laws were meant to advance the cause of justice; to regulate the court proceedings and not to vest or curtail its power---Laws of procedure were codified to cope with every emerging situation---Whenever the procedural law was silent, and circumstances so demanded, court in exercise of its inherent jurisdiction, could formulate its procedure, to meet the ends of justice---Disposal of criminal appeal against conviction and criminal revision for enhancement of sentence, through common judgment, was not an illegality or material irregularity, which vitiated the proceedings, so recorded---Appeal was allowed, sentence awarded by appellate court was set aside and that of the Trial Court was restored accordingly.

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

----S. 409---Criminal breach of trust by public servant, or by banker, merchant or agent---Appreciation of evidence---Sentence, reduction in---Accused being police official had obtained two SMG rifles with seven magazines and 210 live rounds for official duty---Accused did not deposit the said ammunition in the police line in spite of repeated directions---Accused plainly denied taking over of any such ammunition---Validity---Prosecution witnesses categorically stated that accused had obtained said ammunition but did not deposit the same---Father of accused got recorded his statement under S. 164, Cr.P.C. before the Judicial Magistrate wherein he stated that his son obtained two SMG rifles with seven magazines and 20 live rounds, while performing his duty as gunner with the DPO, at place "N'' which were taken by him at place "K''---Said rifles were lost at place "K'' on account of which FIR was lodged---Father of accused deposited the price of said ammunition with the police department---Accused had admitted to be employee in the police department, but as a driver---Accused, therefore, could not be handed over any ammunition---Evidence led by the prosecution had established handing over of the rifles to the accused, who undoubtedly, at the time of entrustment of the rifles/ammunition, was public servant and by not returning the same, accused had committed criminal breach of trust---Circumstances established the guilt of accused without any shadow of doubt---Admittedly cost/price of the ammunition had been deposited by father of the accused at very initial stage of registration of case against accused---Accused had been terminated from service on account of misconduct, which both made an extenuating circumstances in favour of accused---Appeal was allowed, sentence awarded by appellate court was set aside and that of the Trial Court was restored accordingly.

Ejaz Muhammad for Petitioner.

Muhammad Rahim Shah, AAG for the State.

2017 P Cr. L J 505

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SHAH SIM KHAN---Appellant

Versus

The STATE---Respondent

Cr. A. No. 416-P of 2016, decided on 13th October, 2016.

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

----Ss. 6, 7 & 8---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss. 15 & 17---Possession of un-licensed manufacture, sale or repair of arms and ammunition, unauthorized transportation of arms and ammunition, unlicensed possession of arms and ammunition terrorism--- Appreciation of evidence--- "Terrorism"---Essential ingredients---Complainant (police) alleged that they received information about transportation of a huge lot of arms and ammunitions by a car which was apprehended and recovery of ammunition was made from its secret cavities---Effect---Mere recovery of huge quantity of ammunition without producing the cogent and concrete evidence showing that accused belonged to a terrorist organization would not saddle accused for commission of an offence attracting "terrorism"---Ingredients for determination of offence of terrorism were first taking of action specified in S. 6(2) of Anti-Terrorism Act, 1997, second action committed with design, intention and mens rea and third causing intimidation, awe, fear and insecurity in the public or society---All such ingredients were not attracted to the facts and circumstances of present case---Prosecution had based its opinion with regard to use of ammunition for the purpose of terrorist activities merely on assumption and presumption which in the given circumstances could not be acceded to---Appeal was allowed and case was remanded accordingly for decision afresh.

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

----S. 6--- "Terrorism"--- Scope--- Essential ingredients--- Three ingredients for determination of offence of terrorism were (i) taking of action specified in S. 6(2) of Anti-Terrorism Act, 1997 (ii) action committed with design, intention and mens rea (iii) causing intimidation, awe, fear and insecurity in the public or society.

Malik Haroon Iqbal for Appellant.

Moeen ud Din Humayun, A.A.-G. for the State.

2017 P Cr. L J 527

[Peshawar]

Before Nisar Hussain Khan and Ms. Mussarat Hilali, JJ

AHMAD ALI---Petitioner

Versus

The STATE and 2 others---Respondents

W. P. No. 3751-P of 2016, decided on 1st November, 2016.

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

----S. 12---Criminal Procedure Code (V of 1898), S. 173---Case triable by Anti-Terrorism Court---Jurisdiction of Anti-Terrorism Court---Determination---Tentative assessment of prosecution material---Jurisdiction of Anti-Terrorism Court for taking cognizance and conducting trial of offences was to be initially determined on a tentative assessment of the prosecution material that was presented before Trial Court---Relevant record to be considered at pre-trial stage to determine the jurisdiction of the Anti-Terrorism Court was the FIR, investigation report and final report under S. 173, Cr.P.C.

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

----Ss. 302, 365-A, 364, 347, 147, 148, 149 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-i-amd, kidnapping for extortion, kidnapping in order to murder, rioting, common object, common intention, act of terrorism---Transfer of case from Anti-Terrorism Court to ordinary criminal court was sought contending that criminal proceedings against the accused before the Anti-Terrorism Court were without jurisdiction, without lawful authority and of no legal effect---Validity---Prosecution story was that accused kidnapped the deceased for extorting money, confined him in illegal custody and thereafter murdered the deceased---Record showed that accused kidnapped the victim for the purpose of ransom---Act of the accused created insecurity in the society---Offence, therefore, fell in the ambit of Third Schedule of Anti-Terrorism Act, 1997, which was triable by Anti-Terrorism Court.

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

----S. 23---Transfer of case from Anti-Terrorism Court to court of ordinary criminal jurisdiction---Procedure---Anti-Terrorism Court, after taking cognizance of an offence, if opined that allegation in FIR and material collected by investigating agency did not constitute a Scheduled Offence, case would be transferred to the court of ordinary criminal jurisdiction.

Khude-e-Noor v. The State PLD 2016 SC 195 and Umar Farooque and 2 others v. Judge Anti-Terrorism Court, Mirpur Khass and another 2014 PCr.LJ 1052 ref.

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

----Ss. 221 & 222---Charge, framing of---Scope---Charge was to be framed on tentative assessment of the record and examination of the prosecution evidence--- Purpose behind giving such particulars, was that accused should prepare his case in defence accordingly.

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

----Ss.302, 365-A, 364, 347, 147, 148, 149 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(b) & 12---Act of terrorism, qatl-i-amd, kidnapping for extortion, kidnapping in order to murder, rioting, common object, common intention and act of terrorism---Anti-Terrorism Court, jurisdiction of---If the offence of murder and other offences causes terror and fear in general public and thereby attracted the definition of S. 6(1)(b) of A.T.A., it would be triable by the Ant-Terrorism Court---Circumstances for taking cognizance by the Anti-Terrorism Court could be determined after recording evidence as to whether an offence of terrorism was made out or otherwise.

2017 P Cr. L J 582

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Ikramullah Khan, JJ

MUHAMMAD RIAZ---Appellant

Versus

STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No. 216-M of 2015, decided on 28th March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 337-F, 34 & 57---Criminal Procedure Code (V of 1898), S.512---Constitution of Pakistan, Arts.9, 10 & 10-A---Qatl-i-amd, ghayr-jaifah, common intention---Fractions of terms of punishment---Appreciation of evidence---Trial Court awarded sentence in absentia---Accused having absconded, Police after completion of investigation submitted report under S. 173, Cr.P.C., to the Trial Court in absence of accused in view of S.512, Cr.P.C.---Trial Court on basis of evidence recorded in absentia, sentenced accused to suffer life imprisonment till death---Validity---Trial Court neither had framed charge against accused, nor recorded his statement, though he was not present before the Trial Court---Under provisions of S.512, Cr.P.C., evidence of prosecution witnesses recorded against accused on account of his absconsion, in absentia, only would be used in evidence against him on his arrest, during course of trial for the offence with which he was charged---Provisions of S.512, Cr.P.C., had conferred no jurisdiction on the court to convict and sentence accused in absentia---Paramount consideration and object of S.512, Cr.P.C., was to preserve the evidence to exclude the possibility of loss of evidence at the trial, when accused was arrested and prosecution witnesses were not available---Accused had fundamental constitutional and legal right to have fair trial and to get opportunity to defend himself for the charges levelled against him---Articles 9 & 10 of the Constitution, had guaranteed life and liberty of every person and no person would be deprived, either of his life or liberty, save in accordance with law---Sentence awarded to accused was against the mandatory provisions of law---Accused had not been afforded a fair trial and had been condemned unheard, without opportunity to cross-examine the witnesses, who had deposed against him, which was sheer violation, not only of relevant law, but also of Arts.9, 10 & 10-A of the Constitution---Impugned judgment, conviction and sentence of accused, were set aside and case was remanded to the Trial Court for trial in accordance with law, in circumstances.

Sajjad Anwar for Appellant.

Sabir Shah, A.A.-G. and Hazrat Rahman for Respondents.

2017 P Cr. L J 617

[Peshawar]

Before Rooh-ul-Amin Khan and Lal Jan Khattak, JJ

Mst. MADINA---Petitioner

Versus

DIG POLICE MARDAN (REAGAN) and 4 others---Respondents

W.P. No. 3578-P of 2016, decided on 8th December, 2016.

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 302---Application for registration of case against accused was dismissed by Ex-Officio Justice of Peace---Contention of applicant was that her husband had been murdered by respondent but the police with mala fide intention and in league with the respondent had given a wrong colour of dacoity to the incident---Record showed that deceased was fired at by the respondent in his house, who then lodged FIR under S. 398, P.P.C. and under S. 15 of the Khyber Pakhtunkhawa Arms Act, 2013 within a short span of thirty minutes---Respondent had alleged in FIR that two unknown persons had entered into his house but in the same breath, he identified the deceased by giving his particulars---FIR showed that respondent had fired at the deceased and fleeing from the place of occurrence empty handed, allegedly exercising his right of self-defence---Contention of respondent as to weather he was justified to fire at deceased in the exercise of his right of self-defence and if so to what degree and extent could only be solved by lodging FIR against the respondent---Order of dismissal of application passed by Ex-Officio Justice of Peace was set aside by the High Court with direction to the Police to register second FIR of the occurrence against the respondent as per version of the applicant.

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

----S. 154---Penal Code (XLV of 1860), S. 302---Registration of second FIR---Scope---Police Officer or In-charge of a Police Station was under legal obligation to reduce into writing any information given to him in respect of a cognizable offence under S. 154, Cr.P.C.---Said provision of law equally enjoined a police officer to register a second FIR; if initially untrue or distorted facts were given in some FIR, which did not reflect true picture or version of a case---On discovery of actual facts of the incident, there was no bar on registration of second FIR.

PLD 2016 SC 484 rel.

Fazle Wahid for Petitioner.

Mujahid Ali Khan, AAG for Official Respondents.

2017 P Cr. L J 684

[Peshawar (Mingora Bench) Qar-ul-Qaza]

Before Muhammad Younis Thaheem, J

MUKHTEYAR ALAM---Petitioner

Versus

The STATE through Additional Advocate-General and 4 others---Respondents

Cr. M. Q. P. No. 64-M of 2015, decided 14th April, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Complaint under S. 145, Cr.P.C. filed during pendency of suit for declaration, possession and injuction---Maintainability---Petition under S. 561-A, Cr.P.C.---Powers of Magistrate under S. 145, Cr.P.C. and that of civil court---Scope---Petitioner filed complaint under S. 145, Cr.P.C., which was allowed by the Magistrate, whereby the respondents were restrained from interfering with the possession of the petitioner, but the revisional court dismissed the complaint---Questions were whether the complainant could have initiated the proceedings under S. 145, Cr.P.C., when the civil suit about the same immovable property was already sub judice before the competent court, and whether the Executive Magistrate could have taken cognizance of the matter pertaining to immovable property relating to civil dispute---Possession of the property was with the respondents, and the civil suit filed by the petitioner was sub judice before the competent court of law (appellate court), when the latter had filed the complaint under S. 145, Cr.P.C. before the Executive Magistrate---Revisional court below had rightly held that litigation about the property for seeking decree of declaration, possession and permanent injunction came within the jurisdiction of the civil court and fell outside of the jurisdiction of Magistrate under S. 145, Cr.P.C., and that attachment of the property (under S. 145, Cr.P.C.), till the decision of the civil court, was not sustainable in the eye of law, as the powers of criminal courts in the proceedings under S. 145, Cr.P.C. in respect of the immovable property, which was the subject matter of such proceedings, were subordinate to the powers of the civil courts---Controversy regarding possession could not have been put to an end under S. 145, Cr.P.C.---Impugned judgment passed by the revisional court was, therefore, upheld---Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Hafiz Muhammad Hussain v. The State and another 1990 PCr.LJ 827 and Allah Ditta and others v. Muhammad Amin and others 2005 YLR 644 rel.

Muhammad Iqbal Essakhel for Petitioner.

Sabir Shah, A.A.-G. for the State.

Malak Ahmad Jan for Respondents.

2017 P Cr. L J 694

[Peshawar]

Before Assadullah Khan Chamkani, J

YAR MUHAMMAD---Petitioner

Versus

The STATE---Respondent

Cr. Misc. Quashment Petition No. 159-P of 2015, decided on 15th December, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 156(3), 174 & 176---Order for exhumation of dead body---Quashing of order, petition for---Petitioner, who was father of the deceased, had sought quashing of order passed by the Judicial Magistrate, ordering exhumation of dead body of the deceased for postmortem examination---Deceased/daughter of the petitioner met unnatural death, but her legal heirs, did not lodge any report before the Police, as according to them, the deceased committed suicide and she was buried---Judicial Magistrate, on application of the Police, ordered exhumation of dead body of the deceased---Investigating Officer, had not collected any evidence to show the death of the deceased to be a murder by someone by administering poison to her---Legal heirs of the deceased, did not suspect any person, for murder of the deceased---All the legal heirs of the deceased, were unanimous qua suicide of the deceased---Petitioner, being father of the deceased, was the trustee of the grave of her deceased daughter to keep it maintained, not only the grave, but respect and dignity of the dead body also---Islam accorded great respect to the dead body of a Muslim---Exhumation, without any justification, was a sin in Islam---Order of exhumation, must be based on detailed reasoning, logic and fairness--- No such reason was available to justify the exhumation of the dead body---Both courts below had landed in the field of error and reached to a wrong conclusion---Impugned orders were quashed, in circumstances---Application filed by the Police for exhumation of dead body of the deceased, stood dismissed, in circumstances.

Muhammad Atlas Khan for Petitioner.

Mujeeb ur Rehman for the State.

2017 P Cr. L J 709

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan and Haider Ali Khan, JJ

NAZAKAT---Petitioner

Versus

DEPUTY COMMISSIONER---Respondent

W. P. No. 266-P of 2016, decided on 29th March, 2016.

Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Arrest and detention---Allegation against the petitioner which prompted the order of detention under S. 3, Maintenance of Public Order Ordinance, 1960 was his involvement in timber smuggling---Number of complaints had been lodged against petitioner---High Court observed that when a proper law for forest offenders was available and accused could safely be charged under the said law and convicted and stayed behind the bars for a longer term rather than being detained for a period of one month only invoking the provisions of S. 3 of Maintenance of Public Order Ordinance, 1960 by the authorities was not proper---Deputy Commissioner had resorted to the use of Maintenance of Public Order Ordinance, 1960 without comprehending the relevant law---Constitutional petition was accepted and orders passed by the Deputy Commissioner was declared to be illegal and without jurisdiction.

Fahad Habib for Petitioner.

2017 P Cr. L J 724

[Peshawar]

Before Ishtiaq Ibrahim, J

STATE through Advocate-General, Khyber Pakhtunkhwa---Appellant

Versus

SAQLAIN and 2 others---Respondents

Criminal Appeal No. 372-P of 2016, decided on 30th September, 2016.

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

----Ss. 324 & 34---Criminal Procedure Code (V of 1898), S. 417(1)---Attempt to commit qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused persons were nominated by the complainant for effective firing at him and ineffective firing at the prosecution witness---Complainant had alleged that three accused had made indiscriminate firing at the complainant party and 7/8 shots were fired---No specific role of firing had been attributed to any of the accused persons as to with whose fire shot complainant had sustained wound---No bullet marks on the surrounding walls adjacent to the spot was found during inspection---Neither empty nor blood had been recovered from the place of occurrence---Complaint, prior to the alleged occurrence had also been filed by the accused persons against the complainant party, which was still pending---False involvement of accused persons in the case to compel them for compromise, could not be ruled out, which created doubt in the prosecution case---In absence of any incriminating material on record, appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Prosecution was duty bound to prove its case beyond any shadow of reasonable doubt against accused---Multiple doubts were not required in the prosecution case to record judgment of acquittal but a single reasonable doubt was sufficient to extend benefit of the same to the accused as a matter of right.

Mst. Shamshad v. The State 1998 SCMR 854; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139; Akhtar Ali and others v. The State 2008 SCMR 6 and Sher Bahadur and another v. The State 1972 SCMR 651 rel.

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

----S. 417--- Appeal against acquittal--­ Principles--- Judgment of acquittal could only be reversed and set aside if the same was the result of absolute misreading and non-reading of the evidence with a view to avoid grave miscarriage of justice---Mere fact that some other inference could be drawn, on the basis of evidence brought on record, was not a ground to interfere with the judgment of acquittal.

(d) 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 were altogether different---Accused in an appeal against acquittal earned double presumption of innocence (one before trial and the other after acquittal)---Court would not ordinarily interfere in an appeal against acquittal and would give due weight and consideration to the findings of court acquitting the accused---Such approach was slightly different from that in an appeal against conviction---Court, in an appeal against conviction, would have to see that benefit of every reasonable doubt to be extended to the accused.

Ghulam Sikandar v. Mamara Khan PLD 1985 SC 11 rel.

Moeenud Din Humayun, A.A.-G. for Appellant/State.

2017 P Cr. L J 779

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Lal Jan Khattak and Muhammad Younis Thaheem, JJ

MUHAMMAD WALI SHAH and another---Appellants

Versus

STATE and another---Respondents

Criminal Appeal No. 15 of 2013, decided on 4th April, 2016.

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

----Ss. 302, 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, damiyah, common intention---Appreciation of evidence---Benefit of doubt---Ocular account---Allegations against the accused persons were that accused party assaulted the complainant party, one person died and other received injuries during occurrence---Ocular account was furnished by injured/complainant and three eye-witnesses---Injured/complainant reiterated the same facts as narrated in the FIR---Eye-witness stated that he along with other eye witnesses reached the place of occurrence on hearing noise and saw that accused persons were engaged in quarrel with the complainant over the turn of water to lands---Deceased reached there in order to stop the scuffle between the parties, but the accused persons gave him spade blows---Other eye-witnesses narrated the same facts as stated by eye-witness---Investigating Officer prepared site plan of the occurrence but did not mention the names of eye-witnesses---Investigating Officer made deliberate and dishonest improvements by non-mentioning the names of eye-witnesses in the site plan, thus his testimony lost its credibility and evidentiary value---Such careless act of Investigating Officer left the impression that occurrence had not taken place in the mode and manner as alleged by the prosecution---Circumstances created doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused persons---Accused persons, in circumstances, were acquitted by setting aside the conviction and sentence recorded by Trial Court.

(b) Criminal trial---

----Witness---Improvements and contradictions in the statement of prosecution witnesses---Effect---Improvements made by the prosecution witnesses in order to strengthen its case, lost its credibility and evidentiary value---Witness making contradictory statements or improvements in order to bring in line his testimony with the prosecution case, if found deliberate and dishonest, cast serious doubt on his veracity.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----Ss. 302, 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, damiyah, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Medical Officer conducted post mortem of the deceased and sent specimen of different parts of stomach, blood etc. for forensic analysis---Report of forensic analysis was not available, so, the question arose as to what was the cause of death---Complainant and other eye-witnesses had alleged that accused persons had given spade blows to the deceased, but as per Medico-legal Report, no multiple deep wounds were found on the head and other parts of the body of the deceased---Only scratched/bruised wounds had been found on the body of the deceased---Cause of death of the deceased was shrouded in mystery, as to whether the deceased died due to fatal blows of spade by accused persons or the same could be result of his previous ailment---Said circumstances did not support the ocular account and created doubt about the veracity of prosecution case---Accused persons, in circumstances were acquitted by setting aside the conviction and sentence recorded by Trial Court.

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

----Ss. 302, 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, damiyah, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Weapon of offence (spade) was recovered---Admittedly, said weapon of offence had not been sent to the Forensic Science Laboratory for chemical analysis as to whether it was stained with blood matching with deceased or not---Prosecution failed to bring on record any cogent reason as to why such important and vital piece of evidence was not sent to the Forensic Science Laboratory, which created a dent in the prosecution case---Recovery of weapon of offence, in circumstances, became inconsequential---Accused persons were acquitted by setting aside the conviction and sentence recorded by Trial Court.

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

----Ss. 302, 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, damiyah, common intention---Appreciation of evidence---Consultation and deliberation in lodging FIR---Official witness had stated that when he reached the house of complainant, occurrence of murder was reported to him---Natural instinct of the complainant would have been to go to the police station for lodging report, but instead report was made at their house---Circumstances showed that matter was not reported to the police with promptitude---No explanation had been given by the complainant in that respect, thus, the element of consultation and deliberation could not be ruled out---Accused persons, in circumstances, were acquitted by setting aside the conviction and sentence recorded by Trial Court.

(f) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt arises in the prosecution case, benefit of the same would be extended to the accused not as a grace or concession, but as a matter of right.

(g) Criminal trial---

---Benefit of doubt---Scope---Any reasonable doubt arising out of the prosecution evidence pricking the judicial mind was sufficient for acquittal of the accused.

Mohammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; Mohammad Luqman v. The State PLD 1970 SC 10 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Amir Gulab Khan for Appellants.

Naeem-ud-Din and Sabir Shah, A.A.-G. for Respondents.

2017 P Cr. L J 844

[Peshawar]

Before Muhammad Ibrahim Khan, J

DILBAR---Petitioner

Versus

The STATE---Respondent

J. Cr. Misc. No. 86-P of 2016, decided on 1st September, 2016.

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

----Ss. 35 & 397---Penal Code (XLV of 1860), Ss.302, 324 & 34---Conviction of several offences at different trials---Sentence of accused already sentenced for another offence---Discretion of court---Scope---Concurrent running of sentences---Accused was convicted and sentenced to death along with imprisonment and fine in two FIRs at different trials---Death sentence in both cases was altered to imprisonment for life while other sentences were stayed---Running of two different sentences, whether concurrently or consecutively, in both FIRs was not mentioned---Held, that case of accused fell under S. 397, Cr.P.C. which provided discretion to the court to exercise powers moderately and judiciously---Convict, in the present case, was about 80-years of age and had undergone 13-years of rigorous imprisonment---Sentences in both FIRs were ordered to run concurrently by High Court---Petition was allowed accordingly.

Ali Fouzan v. The State 2013 PCr.LJ 652; Nasir Mehmood v. The State 2013 YLR 1340 and PLD 2015 SC 15 rel.

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

----S. 35---Sentence in case of conviction of several offences at one trial---Scope---Section 35, Cr.P.C. was applicable to the accused who was tried for two or more offences in one and the same FIR and was convicted and awarded different sentences for each offence in single trial.

Altaf Khan for Appellant.

Moinuddin Hamayun, AAG along with Noorul Basar, Assistant Superintendent Jail, Haripur for the State.

2017 P Cr. L J 992

[Peshawar]

Before Nisar Hussain Khan and Musarrat Hilali, JJ

ATTA ULLAH---Appellant

Versus

The STATE and another---Respondents

Cr. A. No. 96-P of 2016, decided on 28th July, 2016.

(a) Criminal trial---

----Circumstantial evidence---Acidic test.

Acidic test required in case of circumstantial evidence is as follows:

(i) Whether the circumstances from which the conclusion of guilt is to be drawn are fully established. The circumstances concerned 'must or should' and not 'may be' established;

(ii) Whether the facts so established is consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) Whether the circumstances are of a conclusive nature and tendency;

(iv) Whether the same exclude every possible hypothesis except the one to be proved;

(v) Whether there is a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, and

(vi) Whether the chain is so connected and the different piece of circumstantial evidence had made one chain, an unbroken one where one end of it touched the crime and other neck of the accused.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; 2015 SCMR 155 and Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 rel.

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

----S. 7-H---Extortion of money---Appreciation of evidence---Allegation on the accused that he made demand and threatening calls to the complainant---Accused was apprehended along with mobile phone---Prosecution did not take any step to prove the ownership of mobile phone, allegedly shown to be of the complainant---SIMs and mobile phone recovered from the possession of accused had not been proved through recovery memo---No record of the concerned network company had been produced by the prosecution, showing the use, possession and ownership of said cell number by the accused at the relevant time---Such circumstances created doubts about the veracity of the prosecution case, which resolved in favour of accused---Appeal was allowed and conviction and sentence of accused was set aside in circumstances.

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

----S. 7-H---Extortion of money---Appreciation of evidence---Allegation on the accused was that he made demand and threatening calls to the complainant---Accused was in custody of police, prior to his arrest---Said defence version was admitted by the complainant---Effect---Illegal custody of the accused prior to his arrest trashed all the proceedings conducted by the police like recoveries, discoveries, confessional statement and identification parade etc---Circumstances suggested doubts about the veracity of the prosecution case, the benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentence of accused was set aside in circumstances.

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

----S. 7-H---Extortion of money---Appreciation of evidence---Recovery of SIMs of call phone---Evidentiary value---Alleged recovered SIMs were not in the ownership of accused---Recovered SIMs were in the name of some other persons---Prosecution neither made said persons accused under S. 109, P.P.C. read with S. 21-I of Anti-Terrorism Act, 1997 nor produced them as prosecution witnesses---Adverse inference, in circumstances, could easily be drawn against the veracity of prosecution case, benefit of which would be given to the accused---Appeal was allowed and conviction and sentence of accused was set aside in circumstances.

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

----S. 7-H---Police Rules, 1934, Vol. III, Ch. XXII, R. 22.16---Extortion of money---Case property, sealing of---Alleged recoveries were not sealed on the spot and were produced before the Trial Court in open condition---Validity---Wisdom behind sealing the recovered articles at the spot was to eliminate the possibility of manipulation of evidence after recovery---Production of the recovered articles in open condition before the court was violation of the R. 22.16, Police Rules, 1934, where it was mandatory that each and every incriminating article should be sealed on the spot---Circumstances of the case made the proceedings of the police doubtful, benefit of which was given to the accused---Conviction and sentence was set aside.

Imam Bux alias IMOO v. The State 2013 YLR 30; Rahim Bakhsh v. The State 2010 PCr.LJ 642 and Meer Janvri v. The State 2010 PCr.LJ 1646 rel.

(f) Punjab Police Rules, 1934---

----Vol. III, Ch. XXII, Rr. 22.12, 16 & 70---Entry in Roznamcha---Non-production of entry in Roznamcha by the prosecution in the court to prove the movement of police from the Police Station to the place of arrest and recovery of case property, made the entire proceedings of police doubtful and the prosecution version became unbelievable.

Abdul Sattar and others v. The State 2002 PCr.LJ 51 rel.

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

----S. 7-H---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Extortion of money---Withholding material evidence---Complainant had voice recording of accused which was not matched with the voice of the accused by converting in CD in order to prove his guilt nor any Expert in that regard was produced in the Court to prove the same---Effect---Act of withholding of material evidence of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution---Strong adverse inference could be drawn against the prosecution, benefit of which would be resolved in favour of accused, in circumstances.

Azeem Khan's case 2016 SCMR 274 and Lal Khan v. The State 2006 SCMR 1846 rel.

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

----S. 7-H---Qanun-e-Shahadat (10 of 1984), Art. 150---Extortion of money---Appreciate of evidence---Hostile witness---Star witness/ complainant was declared as hostile---Effect---Prosecution in such circumstance was empty handed as evidence of hostile witness was ignorable and could not be used in favour of prosecution or defence---Conviction and sentence was set aside in circumstances.

Dr. Javaid Akhtar v. The State PLD 2007 SC 249; Muhammadullah v. The State PLD 1963 (W.P.) Peshawar 161; Talib Hussain and 2 others v. The State 1982 PCr.LJ 635 and Muhammad Ayub and another v. The State 1983 PCr.LJ 710 rel.

(i) Criminal trial---

----Benefit of doubt---Scope---Benefit, if creeped from the evidence, must be given to the accused as a matter of right and not as matter of grace.

(j) Criminal trial---

----Benefit of doubt--- Scope--- Bundle of doubts were not necessary, even a slightest doubt was sufficient for acquittal of accused.

Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

(k) Criminal trial---

----Benefit of doubt---Scope---Wisdom of benefit of doubt had been drawn from the words of Holy Prophet (PBUH) that "Mistake of Qazi to acquit ten guilty persons was better than his mistake to convict a single innocent person".

Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Karim v. Abd-u-Sattar and another 2016 PCr.LJ 250 and Muhammad Noor v. Riaz Shah and another 2016 MLD 757 rel.

Shabbir Hussain Gigyani for Appellant.

Mujahid Ali Khan, AAG for the State.

Nemo for Respondent No.2/Complainant.

2017 P Cr. L J 1017

[Peshawar]

Before Muhammad Younis Thaheem, J

Haji FAQIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No. 3086-P of 2016, decided on 4th January, 2017.

(a) 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---Prosecution case was that accused extorted an amount of Rs. two lac from complainant with the false promise of sending him abroad for employment---Complainant was abandoned there and came back to Pakistan---Record showed that an agreement was executed between accused and complainant, whereby it was agreed that in lieu of Rs. Three lac, accused would be bound to provide visa/work permit within a period of one month by sending the complainant abroad---Rupees one lac was paid to accused in presence of witnesses---Statement of solitary witness had not been recorded---Witness had not been cited in whose presence, an amount of Rs. One lac was paid---Record showed that accused had not been nominated in the present case---Question as to whether complainant was cheated by the accused or not needed further probe in the matter---Accused had not been directly charged in the FIR---Accused was charged for the offence after conducting preliminary inquiry, after two and half years of the occurrence--- Facts and circumstances had made out the case within the ambit of further inquiry---Accused was admitted to bail accordingly.

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

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.18(b) & 22(b)---Causing any person to emigrate fraudulently, receiving money for providing foreign employment---Bail, grant of---Further inquiry---Offences under Ss. 18 & 22 of the Emigration Ordinance, 1979 provided alternate punishment of fine---If offence was proved against the accused, he would be awarded punishment to the extent of 14 years or fine or both---If bail was refused, it would amount punishment without trial---Bail was allowed in circumstances.

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

----S. 497---Bail---Principle---Observations made in bail matter were purely tentative in nature and would not prejudice the proceedings before the Trial Court.

Arshad Hussain Yousafzai for Petitioner.

Muhammad Javed Yousafzai, Standing Counsel for FIA for the State.

Farmanullah Khattak for the Complainant.

2017 P Cr. L J 1071

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. BIBI ROZA---Petitioner

Versus

The STATE and 2 others---Respondents

Crl. Misc. Q.P. No. 211-P of 2014, decided on 11th January, 2016.

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

----Ss. 88 & 561-A---Attachment of property of person absconding---Application for quashment of order---Opportunity of hearing/to leading evidence not provided---Effect---Revenue record revealed that the attached property was the ownership of the accused/absconder---Petitioner's claim that the attached property had been transferred in her name by her husband much prior to the registration of the case against her husband, having been based upon an unregistered deed/Tamleek Nama, was not of much weight as compared to the Revenue record---Courts below, however, had disbelieved the petitioner's claim without affording her an opportunity to prove the Tamleek Nama by procuring its marginal witnesses and to rebut the Revenue record on basis of which the property had been attached---Impugned order of attachment had been passed at the back of the petitioner---Proper inquiry regarding the claim of the petitioner in terms of S. 88(6-A), Cr.P.C. should have been conducted by the Magistrate by affording her full opportunity of leading evidence---Impugned order, therefore, were against the law and principles of natural justice----High Court, quashing the impugned order, remanded the case for decision afresh---Application under S. 561-A, Cr.P.C. was allowed accordingly.

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

----S. 88---Attachment of property of person absconding---Inquiry into claim/objection of interested person---Scope---Section 88(6-A), (6-B) and (6-C), Cr.P.C. provides proper mechanism for the person having interest in the property attached under S. 88, Cr.P.C.---Words 'the claim or objection shall be inquired into' in S. 88(6-A), Cr.P.C. are of much significance, which absolutely speak about inquiry in light of evidence---Claim and objection, having been preferred in terms of S. 88, Cr.P.C., is to be essentially put to judicial inquiry by the Magistrate by recording evidence giving fair opportunity of proof and rebuttal to the parties.

S. Shakeel Khan Gilani for Petitioner.

Waqar Ahmad Khan, A.A.-G. for the State.

Muhammad Raees Khan for Respondents.

2017 P Cr. L J 1080

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

AYESHA BIBI---Petitioner

Versus

TALHA MEHMOOD and another---Respondents

Cr. Misc. (BCA) No. 774-A of 2015, decided 1st September, 2016.

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

----S. 497(5)---Bail, cancellation of---Principles---Once a bail was granted by a competent court of law, strong and exceptional grounds were required for cancellation thereof as provisions of S. 497(5), Cr.P.C. were not punitive in nature---Court had to see as to whether the bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice.

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

----S. 497(5)---Bail, cancellation of---Principles---Bail would not be withheld as a punishment, but where bail granting order was perverse and passed in violation of established principles for grant of bail, the court would have to recall the bail granting order.

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

----S. 497(5)---Bail, cancellation of---Principles---Bail would not be withheld as a punishment, but in a case where accused was found to be making efforts to misuse the concession of bail by either extending of threat or likelihood of tampering with prosecution evidence, court would have to recall the bail granting order.

Mushtaq Ali Tahir Kheli for Petitioner.

Raja Mohammad Zubir, AAG and Mehmood ur Rahman Tanoli for Respondents.

2017 P Cr. L J 1096

[Peshawar]

Before Qaisar Rashid Khan and Assadullah Khan Chamkani, JJ

ABDUR RAUF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 560-P of 2015, decided on 24th November, 2015.

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

----Ss. 12, 11(w), 7(ff) & Third Sched.----Explosive Substances Act (VI of 1908), S. 5---Act of terrorism---Printing, publishing, disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any proscribed organization or an organization placed under observation or any concerned terrorism---Possessing explosives under suspicious circumstances---Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Scope---Mere possession of explosive material without use thereof not an offence under Anti-Terrorism Act, 1997---Record of the case showed that only explosive material had been recovered from possession of the accused and use of the same had not been alleged/proved---Mere possession of the explosive substance did not fall within the ambit of the Third Sched. of Anti-Terrorism Act, 1997---Item No. 4 of the Third Sched. of the Act would be read in conjunction with items Nos. 1 to 3 of the Schedule, had made it unambiguous that use of firearms or explosive by any device would come within the ambit of the scheduled offence of Anti-Terrorism Act, 1997, only in cases of its use in mosque, imambargah, church, temple or any other place of worship or court premises---Simple possession of explosive material although had been inserted in the Third Sched. of the Act, but said insertion, being only to the extent of the Province of Punjab, was not applicable to the Province of Khyber Pakhtunkhwa---Present case, falling under Explosive Substances Act, 1908, therefore, would be triable by an ordinary court, that was a Court of Session---High Court, setting aside the impugned conviction/sentence, sent the case to the ordinary court for de novo trial---Order accordingly.

Hussain Ali for Appellant.

Mian Arshad Jan, AAG for the State.

2017 P Cr. L J 1180

[Peshawar]

Before Yahya Afridi, J

MIR DIL KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. Bail Application No. 1338-P of 2016, decided on 15th July, 2016.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, grant of---Further inquiry---Abscondance of accused for eleven years---Effect---Case of accused if required further inquiry into his/her guilt, concession of bail could not be withheld solely on the ground of his long unexplained absconsion---Accused was allowed bail accordingly.

Qamar's case PLD 2012 SC 222; Ehsanullah's case 2012 SCMR 1137; Malik Mukhtar ahmad Awan's case 1991 SCMR 322; Mitho Pitafi's case 2009 SCMR 299; Ibrahim's case 1985 SCMR 382 and Muhammad Sadiq's case PLD 1985 SC 182 rel.

(b) 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---Accused's role, according to FIR was of making lalkara and being one of the four, who fired at the deceased---No one was specifically charged for effective firing---Nature and number of wounds on the deceased and empties recovered from the spot, gave rise to the question that more persons had fired at the deceased---Said factor made the case one of further inquiry and made accused entitled to concession of bail---Bail was allowed accordingly.

(c) 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---Age of accused---Effect---Accused was a man of 74 years of age---No specific injury and description of weapon used by him had been attributed to accused---Case of accused therefore was one of further inquiry falling in subsection (2) of S. 497, Cr.P.C.---Accused was allowed bail in circumstances.

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

----S. 497(2)---Bail, grant of---Further inquiry---Tentative assessment---Bail granting order was confined to tentative assessment made for the purpose of disposal of bail petition---Such order was not intended to influence on the function of the Trial Court while deciding the case on merits.

Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1854 rel.

Ikram-ul-Haq's case 2012 SCMR 1273; Chairman NAB's case 2016 SCMR 676; Mukhtiar's case 2013 YLR 42; Said Muhammad's case 2014 MLD 437; Sardar's case PLD 1979 Pesh. 16; Zafar Hussain's case 2014 SCMR 1591; Lal Zameen's case 2010 YLR 1496; Painda Khan's case 2014 MLD 14; Nowshad Khan's case 2009 YLR 2123 and Gul Babrai Khan's case 2010 PCr.LJ 1330 ref.

Sohail Akhtar for Petitioner.

Moeenuddin Humayun, A.A.-G. for the State.

Mian Hikmatullah Jan for the Complainant.

2017 P Cr. L J 1241

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. ZAINAB---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 384-P of 2014, decided on 18th January, 2016.

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

----S. 203-C--- Complaint in case of fornication---Scope---Section 203-C, Cr.P.C. provided proper mechanism for the offence of fornication.

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

----Ss. 496-A & 496-B---Criminal Procedure Code (V of 1898), S. 203-C---Enticing or taking away or detaining with criminal intent a woman, fornication---Appreciation of evidence---Complainant alleged that his wife (accused) due to strained relations, left his house and went to the house of her parents; that there she developed sexual relationship with co-accused and as consequence she became pregnant---Trial Court convicted the accused persons under S. 496-B, P.P.C.---Validity---Held, that ingredients to constitute offence under S.496-A, P.P.C. were not found in initial report and only the offence under S. 496-B was constituted---Section 496-A as inserted by police in the initial report clearly indicated mala fide intention of police---Neither any complaint had been filed before the Trial Court nor mandatory procedure provided under S. 203-C, Cr.P.C. was complied with---Conviction and sentence of accused were set aside---Appeal was allowed accordingly.

Abdul Fayaz for Appellant.

Waqar Ahmad, A.A.-G. for the State.

Complainant in person.

2017 P Cr. L J 1258

[Peshawar]

Before Waqar Ahmad Seth and Abdul Shakoor Khan, JJ

NOORSHAD---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and 5 others---Respondents

W. P. No. 1046-P of 2016, decided on 29th March, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss.17(d) & 18(g)---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Second reference, quashing of---Same offence---Maxim "nemo debit bis puniri pro uno delicto"---Applicability---Petitioner was convicted by Trial Court in two references filed earlier---Third reference was filed on same allegations with a slight difference in dates of occurrence---Application under S. 265-K, Cr.P.C. filed by petitioner was dismissed by Trial Court---Validity---Offence charged in reference in question was not different in nature or of different kind and it was continuation of same offence, modus operandi and the same transaction, except the period---In view of the provisions of S. 17(d) of National Accountability Ordinance, 1999, there could not have been more than one reference---Maxim "nemo debit bis puniri pro uno delicto" [no one shall be placed in peril (jeopardy) of legal penalties more than once upon the accusation] and if prosecution was permitted to conduct in such a way they were acting, then there would be no end to the prosecution once a person was got to their hands---Petitioner was posted against post of pension payment clerk in a serial of conduct with same modus operandi under the same head while sitting on the same chair in exactly similar nature committed offences, in continuous manner---If prosecution would have been vigilant and bona fide they would have dug out commission of offence of the subsequent period---Negligence and inefficiency so committed by prosecution was mala fide act to get a person in their hands, convicted repeatedly---Application filed by petitioner under S. 265-K, Cr.P.C. before Trial Court was legal and justified--- Constitutional petition was allowed in circumstances.

Arshad Khan v. Chairman NAB and others W.P. No. 3075-P of 2015; 2008 YLR 2688 and PLD 2003 SC 891 rel.

PLD 2016 SC 763 distinguished.

Barrister Syed Mudasser Ameen for Petitioner.

Muhammad Jamil Khan, D.P.-G. for Respondents.

2017 P Cr. L J 1276

[Peshawar]

Before Rooh-ul-Amin Khan and Lal Jan Khattak, JJ

ARSHAD KHAN---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Deputy Prosecutor General NAB and 2 others---Respondents

Writ Petitioner No. 2624-P of 2016, decided on 15th February, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---Criminal Procedure Code (V of 1898), S. 497---Bail, grant of---Second bail application---Statutory delay---Hardship case---Petitioner was arrested by National Accountability Bureau on the allegation of corruption and corrupt practices and his earlier bail was refused by High Court---Petitioner again invoked jurisdiction of High Court for his release on bail on the plea of statutory delay in conclusion of trial---Validity---Plea of bail on merits had already been turned down by High Court, therefore, there was no need to re-dilate upon merits of the case---Provisions of S. 497, Cr.P.C. were not applicable for grant of bail to accused persons facing charges in cases under National Accountability Ordinance, 1999, however, broader principles of S. 497, Cr.P.C. could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerating in jail for a shockingly long period---Investigation in the case was complete and accused was no more required for further interrogation, who had been languishing in jail for last two years---No material was available to show that it was the petitioner who occasioned delay in conclusion of trial---Case of petitioner fell within the ambit of hardship case---Bail was allowed in circumstances.

Hamish Khan v. The NAB Lahore and others 2015 SCMR 1092; Muhammad Jameel Rahi v. DG NAB and others 2012 SCMR 552; Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645 and Anwar ul Haq Qureshi v. National Accountability Bureau 2008 SCMR 1135 rel.

Qazi Muhammad Anwar and Barrister Waqar for Petitioner.

Umar Farooq, ADPG for Respondents.

2017 P Cr. L J 1292

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ

ZAKIULLAH---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 5 others---Respondents

Writ Petition No. 2792-P of 2014, decided on 29th March, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23--- Investigation--- Blocking of Bank account of accused---Grievance of petitioner was that authorities got his bank account blocked under the provisions of S. 23 of National Accountability Ordinance, 1999---Validity---Letter in question was an order whereby proceeds of Bank account owned by petitioner had been blocked under the garb of S. 23 of National Accountability Ordinance, 1999---Freezing of Bank account was provided under S. 12 of National Accountability Ordinance, 1999 and Chairman National Accountability Bureau alone or Court trying an accused were conferred with such jurisdiction and competency by law to issue such order---Nothing was available on record regarding delegation of power on the relevant day for issuing letter in question---Letter blocking the Bank account was illegal--- Constitutional petition was allowed in circumstances.

The State through Prosecutor-General Accountability, NAB, Islamabad v. Babar Ali Kharal PLD 2008 Lah. 347 rel.

Qazi Jawad Ehsanullah Qureshi for Petitioner.

Umar Farooq, ADPG for NAB.

2017 P Cr. L J 1328

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

AMIR BAZ KHAN---Petitioner

Versus

STATE through Additional Advocate-General and another---Respondents

Cr. M.B.C.A. No. 92-M of 2016, decided on 18th January, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 34---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention---Dismissal of petition for cancellation of bail---Scope---Allegations against the accused was that he had obtained the amount from complainant in lieu of purchase of lands through fraud by posing himself as owner of the land---Section 420, P.P.C. was bailable and Ss. 468 & 471, P.P.C. being non-cognizable offences, police could not arrest accused without express warrant from the Trial Court---Under S. 419, P.P.C. punishment had been provided up to seven years with fine or both---Matter seemed to be of civil nature and it was yet to be determined as to whether the sale deed had been executed by the accused---Such determination required evidence to be recorded---Order passed by the court was neither fanciful nor illegal in the given set of circumstances---Circumstances established that there was no scope for cancellation of bail granted to the accused by the Trial Court---Petition for cancellation of bail being shorn of merits, was dismissed, in circumstances.

Waseem Zia v. The State and another 2007 YLR 249; M. Iqbal Butt v. The State and 3 others 2012 PCr.LJ 1350; Messer Pakistan State Oil Company Ltd through Divisional Manager, Retail PSO v. Shaukat Maqbool and another 2005 MLD 432; Aurangzeb v. Shakeel Ahmad and another 2008 PCr.LJ 1565; Haji Khan Sherin and another v. Siraj and another 2006 PCr.LJ 252; Muhammad Boota v. Abdul Hamid and 3 others 2004 PCr.LJ 1447; The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa 2010 SCMR 580; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Mitho Pitafi v. The State 2009 SCMR 299 and Shah Diyaz Khan v. The State 2008 YLR 1070 ref.

Syed Abdul Haq for Petitioner.

Barrister Asad Hameed-ur-Rahman, State Counsel and Asad Ullah for Respondents.

2017 P Cr. L J 1348

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

IHSANUL HAQ---Petitioner

Versus

The STATE through Additional Advocate-General and 3 others---Respondents

Q.P. No. 63-M of 2016, decided on 24th February, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A----Penal Code (XLV of 1860), S. 406---Custody of vehicle during pendency of trial---Application under S.561-A, Cr.P.C. for quashment---Complainant got registered criminal case against the accused with the allegation that accused/petitioner had taken the vehicle from his relative through fraud on the pretext of purchase---Vehicle, which was subject matter of the case was recovered from the petrol station of the petitioner---Complainant moved application for the superdari of the said vehicle, which was allowed by the Trial Court---Petitioner assailed the said order by filing revision petition, which was dismissed---Petitioner moved the present petition for quashing the orders of Trial Court and revisional court and for the custody of vehicle---Validity---Both the parties claimed their ownership regarding vehicle on the basis of documentary evidence which pertained to certain agreements and receipts of the bargain centers---Genuineness of the said documents could not be ascertained without evidence of the parties---If the judgments of the Trial Court as well as revisional court remained in field, either party would not get a fair chance for a decisive ownership of the vehicle in question---Said Judgments/orders therefore were set aside, High Court directed that vehicle in question would be parked in the premises of the Trial Court and Incharge police station concerned was directed to seize the vehicle---Order accordingly.

Ali Mohammad v. Additional Sessions Judge and others 2007 MLD 1096 and Mst. Shaheen Begum v. SHO (ACLC) and others 2005 MLD 176 ref.

Mohammad Hayat Khan for Petitioner.

Rafiq Ahmad, Assistant Advocate-General and Sahadat for Respondents.

2017 P Cr. L J 1432

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

AQEEL KHAN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. (Q) No. 40-A of 2015, decided on 23rd June, 2016.

(a) Constitution of Pakistan---

----Art. 13(a)--- Principle of protection against double punishment/ double jeopardy---Applicability---Principle enrshrinded in Art. 13(a) of the Constitution "that no person shall be punished for the same offence more than once", was applicable only if the accused was convicted and punished---Second prosecution was not prohibited in case of acquittal.

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

----S. 403---"Person once convicted or acquitted not to be tried for same offence"---Scope---Section 403, Cr.P.C. prohibited second trial for an offence during course of existence of conviction or acquittal of a person, as the case may be, in consequence of final adjudication.

(c) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Criminal Procedure Code (V of 1898), Ss. 403 & 561-A---Inherent powers of court/quashment proceedings---Double jeopardy---Unlicensed possession of pistol---Accused was tried and acquitted under Ss. 302/324/109/34, P.P.C. but not under S. 15 of Khyber Pakhtunkhwa Arms Act, 2013---Held, that accused might not be punished for same offence twice---In the presence case, accused was tried and acquitted under Ss. 302/324/109/34, P.P.C. and sending his trial before Judicial Magistrate under S. 15, Khyber Pakhtunkhwa Arms Act, 2013 was in accordance with law---Offences for which accused was acquitted, were independent, and proceedings under S. 15 of Khyber Pakhtunkhwa Arms Act, 2013 had no nexus with offences under the Penal Code, 1860---Petition under S. 561-A was dismissed accordingly.

Muhammad Naseem Khan Swati for Petitioner.

Muhammad Naeem Abbasi, Additional A.-G. for the State.

2017 P Cr. L J 1466

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

MASOOD ANWAR---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. (Q) No. 28-A of 2015, decided on 5th May, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 403---Constitution of Pakistan, Art. 13(a)---Inherent powers of High Court---Petition for quashment of FIR---Principle of double jeopardy---Applicability---Scope---Ground agitated by counsel for the accused was that accused had already been facing prosecution under a reference before Accountability Court consequently he could not be prosecuted for the same offence of the FIR in question on the basis of report made by same complainant---Contention of counsel for accused was misconceived---Article 13(a) of the Constitution provided that no person shall be prosecuted or punished for the same offence more than once only if accused was convicted and punished---Section 403, Cr.P.C. prohibited the second trial for an offence during the course of existence of conviction or acquittal of a person---In the present case, accused was not prosecuted i.e. neither acquitted nor convicted by any court in the offence for which he had been charged by competent court of law therefore neither provisions of Art. 13(a) of Constitution nor the provisions of S. 403, Cr.P.C. could be applied in order to set aside the impugned FIR---Application was dismissed accordingly.

Muhammad Ashraf and others v. The State PLD 1995 SC 626 rel.

Muhammad Amjad for Petitioner.

Muhammad Naeem Abbasi, A.A.-G. for the State.

Respondent No.2 in person.

2017 P Cr. L J 1510

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

Dr. ANWAR ZADA---Petitioner

Versus

The STATE and 2 others---Respondents

Cr. Misc. B.A. No. 514-M of 2016, decided on 2nd December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 377 & 511---Khyber Pakhtunkhawa Child Protection and Welfare Act (XIII of 2010), S. 53---Sodomy, attempt to commit offences punishable with imprisonment for life, sexual abuse---Bail, refusal of---Allegation against accused, a doctor, was that while lying the victim/child on the bed for the purpose of ultrasound caught hold of him, kissed his lips and tried to enter his finger in the anus of child---Accused was directly charged in the FIR for commission of the said offence---Said offence fell in prohibitory limb of S. 497(1), Cr.P.C. as it was punishable under S. 53 of the Khyber Pakhtunkhawa Child Protection and Welfare Act, 2010 entailing punishment up to 14 years---Said offence was heinous in nature as child of 11 years of age had been allegedly put to sexual abuse and harassment by none else but a doctor, who was messiah in the society and belonged to a very prestigious profession where dignity, honour, professional ethics and confidentiality of patients especially if they were women and children were considered to be the benchmarks of the noble profession---Version of the prosecution was supported by statement of the victim recorded under S. 164, Cr.P.C., wherein he narrated the whole story put-forward in the FIR by the complainant---Sufficient material available on record which prima facie connected the accused with the commission of offence---Bail was refused.

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

----Ss. 497 & 345---Penal Code (XLV of 1860), Ss. 377 & 511---Khyber Pakhtunkhawa Child Protection and Welfare Act (XIII of 2010), S. 53---Sodomy, attempt to commit offences punishable with imprisonment for life, sexual abuse---Bail, refusal of---Compromise---Allegation against accused, a doctor, was that while lying the victim/child on the bed for the purpose of ultrasound caught hold of him, kissed his lips and tried to enter his finger in the anus of child---Grandfather of the victim submitted affidavit to the effect that he had no objection if accused was released on bail as compromise between the parties had been effected---Validity---Compromise could not be taken as an option for release of accused on bail as the offence for which the accused stood nominated was non-compoundable, besides heinous in nature---Bail was refused.

2005 PCr.LJ 1181 rel.

Abdul Halim Khan and Syed Abdul Haq for Petitioner.

Barrister Asad Hameed-ur-Rahman for the State.

Complainant in person.

2017 P Cr. L J 1531

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Ibrahim Khan, JJ

PIR BADSHAH and another---Appellants

Versus

ADNAN and another---Respondents

Cr. A. No. 465-P of 2013, decided on 8th December, 2016.

(a) Criminal trial---

----Conviction---Statement of solitary witness---Scope---Conviction and sentence could be awarded on the statement of solitary witness, provided his statement was trustworthy and confidence inspiring.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account not supported by medical evidence---Prosecution case was that the accused-appellants along with absconded co-accused armed with firearms assaulted on complainant party, due to which one person died and one injured---Ocular account was furnished by the sole injured witness---Injured/witness had stated that previously, the parties were having inimical background due to the charges for the murder of brother of injured against the accused party---Prosecution witness had admitted that the brother of injured and son of deceased died due to illness but the accusations of murder were levelled against the accused party but they had been acquitted in that case---Complainant/injured witness stated that accused-appellants were charged in the present case on the basis of previous enmity---Injured witness had admitted that when they reached the place of occurrence, they faced the accused persons front to front and from the front position, they were fired upon---Deceased and injured were in downward position while accused were on upward position---Pictorial position suggested that fire shots were showered from an upper pedestal---Medical evidence did not affirm the ocular account as the entry wound was slightly from downward position while its exit was upward---Admittedly, on the day of occurrence, mother of accused persons had died, thus it was unbelievable that the accused-appellants on the day when their mother was laid to rest had resorted to such act---Circumstances established that accused-appellants had been implicated in the present case on account of previous enmity---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Liban Shah v. The State 2016 PCr.LJ 111; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Amin Ali v. The State 2011 SCMR 323; The State v. Muhammad Raja PLD 2004 Pesh. 1; Mst. Shamim v. The State 2003 SCMR 1466; Mirza Khan v. The State 2007 PCr.LJ 1371; Mushtaq Hussain v. The State 2011 SCMR 45; Naeem Khan v. The State 2016 PCr.LJ 1378; Muhammad Noor v. Riaz Shah 2016 MLD 757; Riaz Hussain v. The State 2001 SCMR 177; Muhammad Aslam v. The State 2003 SCMR 862 and Sadaf Safdar Hayat v. The State 1996 SCMR 1029 ref.

Shahid Nasim for Appellants.

Moin-ud-Din Hamayun, AAG for the State.

Altaf Khan for the Complainant.

2017 P Cr. L J 1607

[Peshawar (Abbottabad Bench)]

Before Ishtiaq Ibrahim, J

MUKHTASIR and 5 others---Appellants

Versus

The STATE and another---Respondents

Cr. A. No. 14-A of 2014 with Murder Reference No. 4-A of 2014, decided on 28th March, 2017.

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

----Ss. 302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Benefit of doubt---Delay of about fifteen hour in lodging FIR---Effect---Place of occurrence was at a distance of 39/40 kilometers from the police station---Record showed that report was not lodged by the complainant at the police station but on the arrival of police at his residence---Such type of report suffered from inherent doubt, benefit of which would resolve in favour of accused---Accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

State through the Advocate-General N.-W.F.P. Peshawar v. Shah Jehan PLD 2003 SC 70 and Allah Bachaya and another v. The State PLD 2008 SC 349 rel.

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

----Ss. 302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party fired on complainant party, resultantly, three persons were murdered and complainant was injured---Ocular account was furnished by eye-witnesses including the complainant---Record showed that complainant received injury at the heel of his left foot---Complainant did not consult the doctor for his treatment and remained present at the spot till the arrival of the police---Said facts had raised inference that story of prosecution was tailored during the interregnum---FIR showed that specific role was given to all the accused persons, who were shown to be present at the time of occurrence---Accused persons were alleged to be armed with sophisticated weapons and made indiscriminate firing at complainant and deceased persons---Site-plan showed that distance between the accused and the deceased was 39/40 paces, in such circumstances, complainant could not identify the shot of each accused and specify for specific causality, which was unnatural and unbelievable---Allegedly, complainant had sustained firearm injury attributed to co-accused but medico-legal examination showed that there was a skin deep lacerated wound at the heel of left foot---Medical Officer, as witness affirmed that said injury was caused by sharp edged stone---Eye-witness had deposed that he was present in his house and he came out from the house and noticed that accused persons were firing at the complainant party---Site-plan prepared by Investigating Officer had shown all the places but house of said eye-witness had not been cited therein---Footnote of the site-plan showed that same was prepared at the instance of complainant but eye-witness in his court statement had not owned the preparation of site-plan as such---Accused persons had been shown in the site-plan at upper level, while deceased persons were shown at the bank of canal on lower level to the accused persons whereas all the injuries on the bodies of deceased were from downward to upward---Circumstances established that ocular account was not in line with the medical evidence, and site-plan and medical evidence were contradictory to each other---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Bashir Ahmad alias Mannu v. The State 1996 SCMR 308; Muhammad Irshad and another v. The State 1999 SCMR 1030 and Muhammad Hayat and another v. The State 1996 SCMR 1411 rel.

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

----Ss. 302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Interested witness---Testimony of closely related witness---Reliance---Scope---Prosecution case was that accused party attacked the complainant party, resultantly, three persons were murdered and complainant was injured---Ocular account was furnished by two witnesses including complainant---Both the witnesses were related inter se and closely related to all the deceased, such witnesses could legitimately be termed as interested witnesses---Statements of such witnesses were to be looked into with great care and caution---Statement of interested witness could be taken into consideration but the same had to be supported by some strong corroboration by independent source---Circumstances established that no independent evidence was available to support the version of interested witnesses---Accused persons were acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25 rel.

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

----Ss. 302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Record showed that four empties of 303-bore and thirty empties of 7.62 bore were recovered from the spot, which were not sent to the Forensic Science Laboratory to ascertain whether the same were fired from one or different weapons---Empties were sent to the Forensic Science Laboratory along with two weapons allegedly recovered from the house of co-accused persons for examination whether the same were fired from said weapons---Reports of Forensic Science Laboratory were in negative---Accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(e) Criminal trial---

----Conviction--- Heinousness of offence--- Effect--- Heinousness of offence would not be the yardstick for adjudging guilt of the accused---Court for convicting the accused had to see the evidence which had been adduced by the prosecution, whether it was up to the mark and was of unimpeachable character.

(f) Criminal trial---

----Motive---Scope---Motive was double-edged weapon, which cut either way---Motive was corroborative piece of evidence, which by itself was not sufficient to adjudge the accused guilty.

(g) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused entitled him to its benefit, not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. State 2009 SCMR 230 rel.

Ghulam Mustafa Khan Swati and Muneer Hussain for Appellants.

Raja Mohammad Zahir, A.A.-G. and Abdul Saboor Khan for the State.

2017 P Cr. L J 1646

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

SABIR SHAH---Appellant

Versus

The STATE and another---Respondents

Cr. A. No. 76-M of 2016, decided on 23rd February, 2017.

Penal Code (XLV of 1860)---

----Ss. 324, 337-D & 337-F(iii)---Attempt to commit qatl-i-amd, jaifah, mutalahimah---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that the accused made firing with pistol on the complainant with intention to kill him---Ocular account was furnished by complainant/injured, who narrated the whole story as advanced in the Murasila and FIR---Parties were known to each other and the distance between the assailant and the victim was short---Injured witness was holding a torch in his hand, light of torch was sufficient source of light for witnessing the incident, thus no room was left for misidentification of the accused---In the present case, statements of all the prosecution witnesses were linked in chain---Medical Officer, who examined the injured, affirmed the injuries sustained by the injured---Complainant had been proved to be truthful witness, his statement being confidence inspiring---Circumstances established that version of complainant was supported by medical evidence, which was sufficient to bring home the charges against the accused---Appeal against conviction was dismissed in circumstances.

Jehad Ali v. Riaz Ali and another 2014 PCr.LJ 1559; Muhammad Saleem v. The State 2010 SCMR 374; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Sharif v. The State NLR 2014 Criminal 516; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Abdul Majeed and 2 others v. The State and another 2012 MLD 964; Muhammad Arif v. The State 2006 PCr.LJ 1827; Sajjad Ali v. Mst. Mah Pari and another 2007 MLD 613; Irfan alias Irfoo and 2 others v. The State 2016 MLD 1997; Abdul Sattar v. The State 2016 PCr.LJ 722; Muhammad Hanif v. The State 2005 PCr.LJ 667; Khan Ahmad Khan and another v. The State and 2 others 2012 PCr.LJ 1662; Qadan alias Qadir Bux and another v. The State PLD 2015 Sindh 426; Mst. Bukhti-Haram v. Sabir and 4 others 2016 PCr.LJ 1408; Mushtaq alias Shaman v. The State PLD 1995 SC 46 and Shah Jehan and another v. The State 2012 YLR 1355 ref.

Said Hakim for Appellant.

Barrister Asad Hameed-ur-Rehman, State counsel and Inamullah for Respondents.

2017 P Cr. L J 1661

[Peshawar]

Before Waqar Ahmad Seth, J

RIAZ UR REHMAN---Petitioner

Versus

The STATE---Respondent

Criminal Misc. B.A. No. 828-P of 2017, decided on 12th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic drugs---Bail, grant of---Accused was behind the bars for one and a half year and directions were issued to Trial Court twice to conclude the trial but even after the lapse of more than a year, Trial Court had examined only one witness---If the Trial Court proceeded trial with such speed that would not be concluded in a near future---High Court directed to release the accused on bail in circumstances.

Jadeed Gul v. The State 1998 SCMR 1124; Muhammad Aslam v. The State 1999 SCMR 1092 and Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 rel.

Muhammad Yousaf Orakzai for Petitioner.

Muhammad Asghar Khan Kundi for the State.

2017 P Cr. L J 1709

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL WALI---Petitioner

Versus

UMAR and another---Respondents

Cr. Misc. B.A. No. 262-P of 2016, decided on 25th February, 2016.

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---Complainant in his initial report, charged unknown culprits for murder of his son---Father of deceased, after one month, recorded his statements under S. 164, Cr.P.C. wherein he charged the accused and his co-accused without disclosing the source of his satisfaction against complicity of the accused in the commission of offence---Accused had not confessed his guilt before the competent court of law nor anything incriminating, prima facie connecting him with the commission of offence, had been recovered either from his direct or indirect possession---Mere abscondence of the accused would not hamper his way of bail when otherwise on merit he was entitled for the same---Circumstances established that participation of the accused in the commission of offence required further inquiry within the ambit of S. 497(2), Cr.P.C.---Accused was allowed bail in circumstances.

Qazi Intekhab Ahmad for Petitioner.

Shahid Khan for the State.

Raham Bad Shah for the Complainant.

2017 P Cr. L J 53

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

ALI BAKHSH BALOCH and others---Petitioners

Versus

The STATE through D.G. NAB and others---Respondents

C. P. No. 740 of 2014, 424 and 437 of 2015, decided on 14th June, 2016.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi) & (b)---Pre-arrest bail, refusal of---Misuse of authority---Mala fide---Proof---Petitioners were government officials who were alleged to be involved in embezzlement of wheat stored in godown---Plea raised by petitioners was that they had been involved due to mala fide---Validity---Mala fides, if asserted must be specifically alleged in petition to establish an exceptional case in favour of person approached for relief of anticipatory bail---Such requirement was missing and allegations against petitioners were of misuse of authority, negligence and violation of law, non-performance of their duties---Accumulated result of such acts was embezzlement and misappropriation of wheat and causing loss of millions of rupees to government exchequer---High Court declined to grant pre-arrest bail to petitioners---Constitutional petition was dismissed in circumstances.

Rana Muhammad Arshad v. Muhammad Rafiq PLD 2009 SC 427; Ali Muhammad Baloch v. The State 2015 YLR 666; 2004 MLD 203; Hidayatullah Khan v. Crown PLD 1947 Lahore 21; PLD 1998 SC 97; Muhammad Sardar v. The State 1983 SCMR 645; Murad Khan v. Fazal Subhan PLD 1981 Lah. 599 and State v. Kabeer Khan PLD 2005 SC 364 ref.

Zia-ul-Hassan v. The State PLD 1984 SC 192 rel.

Sardar Ahmed Haleemi for Petitioner and Petitioner present.

Riaz Akhtar Tareen, Additional Prosecutor General for the State.

2017 P Cr. L J 85

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

ELLA-UD-DIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.(s)55 of 2014, decided on 24th July, 2014.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Accused was driving the car in question, while co-accused was sitting next to him on front seat---On search of car 82 packets of baked charas of one Kg. each, were recovered---Specimen from each packet was separated for chemical analysis and a separate parcel of 500 grams was sealed for chemical analysis---Accused persons were arrested on the spot with recovered contraband substance---Sending the recovered contraband item with delay of beyond the period of 72 hours, would not vitiate the trial---Contradictions in the statements of prosecution, though were always fatal to the prosecution case, but a distinction was to be made between minor inconsistencies or variance in the testimony of witness from the contradictions in the evidence---Only such statements would be termed as contradictory which were either destructive of each other or were totally different to the extent that two versions could not be reconciled---Minor discrepancies in the present case, were not of such nature---Alleged contraband was recovered from the secret cavities of the car; driver could not be absolved from the responsibility, as he being the driver would have knowledge about the prohibited substance secretly concealed in the car---Knowledge and the conscious possession of both accused persons, could not be ruled out in presence of un-impeachable prosecution evidence---Co-accused was rightly held responsible for committing the offence, charged against him---Ocular testimony, recovery of substance, positive Forensic Science Laboratory report, had fully proved case against accused persons---Accused persons, could not establish that they were substituted---Prosecution successfully proved its case against the accused persons without shadow of doubt, no interference was required by High Court---Impugned judgment passed by Special Judge for narcotics, was upheld, and appeal was dismissed in circumstances.

Abdul Khaliq Sumalani for Appellants.

Abdullah Kurd for the State.

2017 P Cr. L J 211

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

SOBA KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 186 and Criminal Revision No.12 of 2015, decided on 23rd November, 2016.

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

----Ss. 302, 324, 337-A(v), 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-ammah, rioting and unlawful assembly---Appreciation of evidence---Ocular account corroborated medical evidence---Prosecution story was that accused party attacked the complainant party, murdered the deceased and injured the prosecution witness---Prosecution produced two eye-witnesses, one of them received injuries during occurrence---Injured prosecution witness correctly identified accused in trial court---Eye-witness of the occurrence fully corroborated the statement of injured witness---None of the witness derailed while recording their statement in court---Statement of prosecution witnesses were in line and corroborated each other on all material counts---Nothing advantageous/ favouring the defence had come on record inspite of lengthy cross-examination---Prosecution witnesses remained firm in their deposition with regard to date, time and place of occurrence---Medico-legal Reports of deceased/injured fully corroborated nature of injuries, weapon of offence used in the occurrence and locale of injuries sustained by the injured/deceased--- Medical evidence was absolutely in line with the ocular account and as such fully supported the case of prosecution--- Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 337-A(v), 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-ammah, rioting and unlawful assembly---Appreciation of evidence--- Abscondance of accused--- Evidentiary value---Prosecution story was that accused party attacked the complainant party, murdered the deceased and injured the prosecution witness---Occurrence took place in the year 2010----Accused was arrested in the case during the year 2014---Defence had failed to furnish any plausible explanation for such long absconsion of accused---Abscondance of accused, soon after the occurrence, for considerable long time was another significant incriminating piece of evidence against him---Appeal against the conviction was dismissed.

Muhammad Latif v. State 2008 SCMR 1106 and Muhammad Ameer alias Mery v. Qadeem Gul and 2 others 2016 YLR 735 rel.

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

----Ss. 302, 324, 337-A(v), 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-ammah, rioting and unlawful assembly---Appreciation of evidence---Interested witness---Testimony of closely related witness---Reliance---Scope---Prosecution story was that accused party attacked the complainant party, murdered the deceased and injured the prosecution witness---Testimony of any witness could not be disbelieved solely on the ground that such witness was related to the complainant---Court had to see the truthfulness and credibility of such witness--- Appeal against conviction was dismissed in circumstances.

Muhammad Ameer alias Mery v. Qadeem Gul and 2 others 2016 YLR 735; Zahoor Ahmed v. The State 2007 SCMR 1519 and Latif v. State 2008 SCMR 1106 rel.

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

----Ss. 302, 324, 337-A(v), 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-ammah, rioting and unlawful assembly---Appreciation of evidence---Motive, proof of---Prosecution story was that accused party attacked upon the complainant party, murdered the deceased and injured the prosecution witness---Prosecution witnesses of ocular account had sufficiently explained the motive---Dispute about land and litigation was pending between the parties---Record showed that both the parties prior to the incident had also submitted peace sureties---Such circumstances and facts were admitted by accused while recording his statement under S. 340(2), Cr.P.C.---Prosecution had successfully proved motive against the accused---Appeal against conviction was dismissed accordingly.

Muhammad Aslam Chishti for Appellants.

Abdul Latif Kakar, Additional P.G. for the State.

Shaukat Ali Rakhshani for the Complainant.

2017 P Cr. L J 313

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

ADDITIONAL PROSECUTOR GENERAL, BALOCHISTAN, QUETTA---Petitioner

Versus

ABDUL QADEER and another---Respondents

C. P. No. 463 of 2016, decided on 27th October, 2016.

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

----S. 154---Registration of second FIR--- Scope---Registration of second FIR in respect of different version given by aggrieved party of the same occurrence was not barred---Only impediment on the same was second FIR would not contain the facts for the mere amplification of the first version---Constitutional petition was dismissed accordingly.

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

----S. 302---Qatl-i-amd---Registration of second FIR---Scope---No hard and fast rule or principle could be laid down as to when second FIR could or would be recorded---Matter of registration of second FIR had to be seen in the context of totality of the circumstances and the allegations of every case---No bar existed against the registration of second FIR regarding the same occurrence---Constitutional petition was dismissed accordingly.

Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 and Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556 rel.

Muhammad Younas Mengal, A.P.-G. for Petitioner.

Manzoor Ahmed Shah for Respondent No.1.

2017 P Cr. L J 409

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD HASHIM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.187 and 194 of 2016, decided on 19th October, 2016.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Failure to establish conscious possession of narcotic---Effect---Allegedly 40-kilograms charas in two bags were found beneath the seats of accused persons---Neither the recovery memo nor the FIR contained the seat numbers and even no tag or documentary evidence had come on record connecting the accused with the said bags---Mere presence of the accused persons in the passenger bus or recovery of bags beneath their seats was not enough to fix the responsibility upon the accused persons for transporting huge quantity of narcotics---Prosecution had not established physical and conscious possession on the part of the accused---Circumstances of the case cast reasonable doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused persons---Appeal was allowed and conviction and sentences recorded by Trial Court were set aside.

Jameela v. State PLD 2012 SC 369 rel.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Recovery witness, credibility---Prosecution witness had alleged that accused persons had claimed the ownership of the two bags of contraband at the time of checking---Validity---If the accused persons had any nexus with the said bags containing huge quantity of contraband, they would never have claimed the ownership of the same or at the best, they could have kept mum---Said deposition of prosecution witness was neither believable nor appealed to the logic, hence the same was highly doubtful---Appeal was therefore allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Applicability of S. 103, Cr.P.C.---Contraband was allegedly recovered from two bags found beneath the seats occupied by the accused persons---No private witness was associated in the recovery proceedings despite the fact that many passengers were travelling in the said bus at that time---Investigating Officer did not call any passenger, driver or cleaner to attest the arrest and recovery proceedings, which was violation of S. 103, Cr.P.C.---Fact remained that S. 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S. 103, Cr.P.C. in narcotics cases, but great care and caution was to be taken for association of a private witnesses if available at the time of arrest and recovery---Circumstances of the case had created serious doubt in the case of prosecution, benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

State through Advocate-General N.-W.F.P. v. Gulla 2011 PCr.LJ 696 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Recovery witness failing to identify accused persons---Effect---Prosecution/recovery witness had failed to identify the accused persons during trial which suggested that prosecution recovery witness was not present at the time of recovery proceedings, thus creating serious doubt about recovery of contraband---Benefit of such doubt would resolve in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside, in circumstances.

2003 SCMR 1419 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Seizure of narcotic---Chemical analysis of narcotics---Appreciation of evidence---Benefit of doubt---Record showed that case was registered on 29th March, 2015 and recovery of alleged contraband was also effected on the same date---Investigating Officer ought to have sent the samples for analysis within 72 hours to the Forensic Science Laboratory as required by R. 4(2) Control of Narcotic Substances (Government Analysts) Rules, 2001---Report of Forensic Science Laboratory had shown that samples were sent to it on 3rd March, 2015, much prior to its recovery as well as registration of the case---Said glaring contradiction had seriously damaged the case of the prosecution---In said circumstances, Forensic Science Laboratory's report, in circumstances, had lost its evidentiary value and no implicit reliance could be placed thereon---Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

(f) Criminal trial---

----Appreciation of evidence---Benefit of doubt---Principle---Many circumstances creating doubt was not necessarily required---Accused was entitled to get benefit of slightest doubt.

Syed Abdul Baqir Shah for Appellant (in Criminal Appeal No.187 of 2016).

Qurban Ali Tareen for Appellant (in Criminal Appeal No. 194 of 2016).

Shabir Shah, Standing Counsel for the State.

2017 P Cr. L J 445

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL HAYEE and 2 others---Appellants

Versus

STATE through Prosecutor-General Balochistan---Respondent

Criminal Appeals Nos. 296 and 324 of 2016, decided on 15th December, 2016.

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

----S. 13-E---Anti-Terrorism Act (XXVII of 1997), S. 21-L---Possessing unlicensed arms, abscondance of accused---Appreciation of evidence---Prosecution case was that huge quantity of arms and ammunition were recovered from the vehicle, wherein three persons were seated---Accused was driving the vehicle while the co-accused persons were seated therein---Said persons failed to produce any valid licence, Rah Dari or permit for the recovered arms and ammunition---One of the co-accused absconded during trial jumping bail---Prosecution produced three witnesses in order to prove the charge against the accused persons---Prosecution witnesses recorded their statement in line with each other---Witnesses remained firm in their depositions---Witnesses correctly identified the accused persons in the court---Statements of witnesses were corroborative of each other with regard to date, time, place of recovery and the manner, in which the search of the vehicle was conducted which resulted into recovery of said arms and ammunition---Prosecution successfully established the recovery of arms and ammunition from the vehicle but failed to establish the conscious knowledge and awareness of all the accused about the availability of arms and ammunition in the vehicle---Accused was driving the vehicle, thus he was in-charge of the vehicle---Said vehicle was under his control and possession---Circumstances established that articles lying in the vehicle were presumed to be under his control and possession---Besides the recovery of arms and ammunition, a revolver along with 16 live rounds were recovered from the possession of accused/driver, which clearly indicated that actually he was the culprit, who had concealed the arms and ammunition in the vehicle and was transporting the same---Appeal against conviction and sentence was dismissed in circumstances.

Nadir Khan v. State 1998 SCMR 1899 and Ali Muhammad v. The State 2013 PCr.LJ 915 rel.

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

----S. 13-E---Anti-Terrorism Act (XXVII of 1997), S. 21-L---Possessing unlicensed arms, abscondance of accused---Appreciation of evidence---Huge quantity of arms and ammunition were recovered from a vehicle---Knowledge and awareness about the concealed arms and ammunition---Scope---Prosecution case was that huge quantity of arms and ammunition were recovered from the vehicle, in which three persons were seated---Accused was driving the vehicle whereas co-accused were seated in the said vehicle---Prosecution failed to substantiate the charge against the co-accused, who were seated in the vehicle, as nothing was on record to the effect that they were in the knowledge and were aware of concealing the arms and ammunition in the vehicle---Mere presence of co-accused in the vehicle was not enough to hold them responsible for concealment of arms and ammunition or its transportation---Circumstances established that co-accused were not responsible for the concealed arms and ammunition---Conviction and sentence against co-accused recorded by Trial Court were set aside.

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

----Ss. 10(11-A) & 21-L---Pakistan Arms Ordinance (XX of 1965), S. 13-E---Constitution of Pakistan, Arts. 9 & 10 (1)---Appreciation of evidence---Trial in absentia---Natural justice, principles of---Applicability---Conviction and sentence---All accused persons were charged under section 13-E, Pakistan Arms Ordinance, 1965---Co-accused absconded during trial---Trial of said co-accused was concluded in absentia---Absconded co-accused was convicted and sentenced under S. 21-L, Anti-Terrorism Act, 1997---Validity---Trial of co-accused in absentia was violation of Arts. 9 & 10(1) of the Constitution and S. 10(11-A) of the Anti-Terrorism Act, 1997---Conviction and sentence of co-accused in absentia therefore could not be sustained as they were not afforded any opportunity of hearing---Absconded co-accused was thus condemned unheard, which was contrary to the principles of natural justice---Attending circumstances suggested that conviction and sentence to absconded co-accused could not be awarded---Absconded co-accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

Mir Ikhalq Ahmed v. The State 2008 SCMR 951 rel.

Najam-ud-Din Mengal for Appellants.

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

2017 P Cr. L J 479

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

NOOR MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 71 of 2015, Criminal Revision No. 1 of 2015 and Criminal Acquittal Appeal No.42 of 2015, decided on 8th December, 2016.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No direct evidence---Accused was charged for the murder of deceased---Complainant did not initially nominate any person in his fard-e-bayan, on the basis of which, FIR was recorded---Accused persons had been nominated through supplementary statement---Complainant had taken U-turn from his previous statement---Such facts created doubt in the prosecution's case, benefit of which would resolve in favour of accused---Conviction and sentence recorded by Trial Court were set aside in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused persons were not named in the FIR--- Complainant implicated the accused persons through supplementary statement---Complainant made improvements in his supplementary statement---Circumstances suggested that complainant involved the accused persons falsely and therefore, reliance could not be placed on his such statement---Conviction and sentence recorded by Trial Court were set aside in circumstances.

(c) Criminal trial---

----Witness---Improvements made by witness---Effect---If witness improved his version to strengthen the prosecution case, statement of such witness, could not be relied upon being dishonest---Credibility of witness had become doubtful, which cast serious doubt on the veracity of such witness.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Retracted confession---Accused was charged for the murder of deceased---Accused made confession before Judicial Magistrate but later on retracted---Retracted confession of the accused was not corroborated by any evidence---Circumstances suggested that confessional statement retracted by the accused person, could not at all be called as voluntary judicial confession in the eye of law and the same had no legal effect---Conviction and sentence recorded by Trial Court were set aside in circumstances.

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

----S. 164---Confession---Retracted confession---Evidentiary value---Conditions---Retracted confession could not be based as a ground for conviction of accused unless the same was corroborated by strong pieces of evidence and appeared to be voluntary, without any inducement, promise, duress or coercion---If retracted confession appeared to be voluntary and true, it was supposed to be the best evidence against the maker (accused) and could be made sole basis for conviction, without looking for corroboration.

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

----Arts. 38 & 39---Information or disclosure by accused in custody of Police---Admissibility---Information or disclosure by accused in the custody of police was inadmissible/irrelevant under Arts.38 & 39 of Qanun-e-Shahadat, 1984.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Relevance---Weapon of offence (pistol) was recovered from the possession of accused---Report of Forensic Science Laboratory showed that recovered 30-bore crime empties were not fired from the pistol, which was recovered from the possession of accused---Such recovery of weapon of offence was of no avail---Conviction and sentence recorded by Trial Court were set aside in circumstances.

Syed Manzoor Shah for Appellants (in Criminal Appeal No. 71 of 2015).

Syed Manzoor Shah for Respondents Nos. 1 and 2 (in Criminal Revision No. 1 of 2015).

Najam-ud-Din Mengal for Appellants and Petitioners (in Acquittal Appeal and Criminal Revision).

Khalid Ahmed Kubdani for Respondents (in Acquittal Appeal No. 42 of 2015).

Ameer Hamza Mengal, Deputy Prosecutor General for the State.

2017 P Cr. L J 568

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL WAHAB and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal (ATA) No. 52 of 2016, decided on 26th December, 2016.

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

----S. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for extorting property, valuable security, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that minor son of complainant was abducted by two unknown persons for ransom and was recovered in a raid from the house of accused persons---Entire prosecution case was based on the evidence of complainant, his father and alleged abductee, which were not enough to make basis for conviction of the accused persons---Complainant failed to mention the mobile number from which demand of ransom amount was made to him and did not mention the amount of ransom that had been demanded by the accused persons---Specific date and time when he was telephoned for the payment of ransom was also not mentioned---Complainant simply narrated the story of abduction of his son which story was narrated to him by his brother---Statement of said brother of complainant was withheld by the prosecution and he was not produced as witness nor had been associated in the investigation in order to bring on record as to who had narrated the story of minor to his brother---Complainant had stated nothing about the recovery of his son by the police from the house of accused persons; he had admitted that accused persons were his close relatives; that they used to visit the houses of each other; that abductee used to stay in the house of accused persons; that when his son was missing, he did not enquire from the house of accused persons and that he lodged the report on the basis of suspicion---Grand father of abductee had recorded his statement in line to the statement of complainant but had not specifically levelled any allegation against the accused persons---Circumstances established that prosecution had failed to prove the charge against the accused persons---Accused persons were acquitted in circumstances by setting aside the conviction and sentences recorded by the Trial Court.

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

----S. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for extorting property, valuable security, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt--- Statement of minor/abductee--- Evidentiary value---Prosecution produced abductee as witness, he narrated the story with regard to his alleged abduction but did not nominate the accused persons as culprits---Statement of abductee under S. 164, Cr.P.C. was recorded by the Judicial Magistrate, after sixth day of his alleged recovery---Record was silent as to why the statement of alleged abductee was recorded after the delay of 6-days of his recovery---Investigating Officer was supposed to produce the minor soon after his recovery in order to eliminate any suspicion or ambiguity---Accused persons were present at the time of recording statement of abductee but no opportunity of cross examining the minor upon his statement was afforded---Circumstances had diminished the evidentiary value of such statement of the minor---Statement of abductee minor did not inspire confidence, as admittedly minor had been tutored by the complainant before making the statement---Accused persons were acquitted in circumstances by setting aside the conviction and sentences recorded by the Trial Court.

(c) Criminal trial---

----Child witness---Evidentiary value---Great care and caution was to be taken while examining a child witness.

State v. Farman Hussain PLD 1995 SC 1 rel.

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

----S. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for extorting property, valuable security, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of alleged abductee---Alleged abductee was recovered in a raid to the house of accused, which was doubtful---Official witness who was member of raiding party, in his statement did not mention the exact time as to when raiding party arrived at the house and the recovery of abductee was effected from a residential room of the house---Said witness was silent with regard to arrest of any other accused from the house at the time of raid, while other official witness stated contrary to the said statement---Statements of official witnesses were not in line with each other on material points---Place of occurrence was a thickly populated area but none from the locality was associated in the investigation process nor a single independent witness from the locality was produced to support the story of abduction----Friends of minor abductee, who were accompanying him at the time of his abduction, were not associated with the investigation---Circumstances showed that accused persons were involved in the case on the basis of suspicion---Accused persons were acquitted in circumstances by setting aside the conviction and sentences recorded by the Trial Court.

Muhammad Ramzan and 3 others v. The State 2011 YLR 2379 rel.

(e) Criminal trial---

----Evidence---Standard of proof---Suspicion---Suspicion howsoever grave or strong could not be a proper substitute for proof required in a criminal case.

Muhammad Zahir v. The State 2011 YLR 3030 and Mst. Parveen Akhtar and others v. The State 2011 YLR 1899 rel.

(f) Criminal trial---

----Benefit of doubt----Even a slightest doubt in the case of prosecution, entitled the accused to be acquitted.

S. A. M. Qadri, Qurban Ali and Aizaz Baqri for Appellants.

2017 P Cr. L J 594

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

HIDAYATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.262 of 2015, decided on 29th December, 2016.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he murdered his wife allegedly on account of spending an extra night with her parents---Ocular account was furnished by complainant and private prosecution witnesses---Complainant had stated that he found injuries on the head as well as on different parts of body of his deceased daughter---Prosecution witnesses, who had given bath to the deceased affirmed the statement of complainant with regard to presence of injuries on the person of deceased---Statements of the witnesses and the complainant had established the fact that none of them (witnesses) had witnessed the crime---Witnesses had only seen the injuries on the person of deceased and presumed that deceased had been murdered---Despite of the said fact, complainant failed to report the matter to police in time---Due to such delay in reporting the matter to police, investigating agency could not collect any incriminating piece of evidence from the place of occurrence i.e. blood-stained earth, blood-stained clothes of the deceased and even no recovery of crime weapon was effected due to the fault of the complainant party---No proceedings under S. 174, Cr.P.C. could be carried out and the deceased was not examined by the Medical Officer soon after the occurrence---Conduct of complainant was not appealable to a prudent mind---Daughter of complainant was murdered in brutal manner and the murderer himself disclosed the fact of murder, but complainant had not reacted to the same and had buried the deceased without even making any hue and cry or pointing finger upon the accused---Naming of accused in the fard-e-bayan along with the names of witnesses who had given bath to the deceased or that laid the deceased in grave was doubtful, benefit of which would resolve in favour of accused---Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by Trial Court.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Occurrence had taken place on 23rd September 2012---Complainant/father of the deceased and his relatives were well aware of the fact of unnatural death of deceased and injuries so received on the person of deceased, but despite that fact not only the complainant kept quiet, but all the prosecution witnesses being closely related to the complainant party kept complete silence till 18th October, 2012---Matter was reported to the police after the delay of about twenty five days of the occurrence, when deceased had already buried without medical examination or post-mortem---Conduct of complainant and his relatives for not reporting the matter to the police in time had not only delayed the registration of FIR for 25-days, but also the law had not been set in motion in conducting the investigation of the case as 25-days were sufficient enough time for a culprit to eliminate the evidence---Circumstances suggested that possibilities of consultation and deliberation for nominating the accused in the crime by the relatives during the intervening period could not be ruled out, thus no implicit reliance could be placed on the version mentioned in the FIR---Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by Trial Court.

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

----S. 154---Delay in lodging FIR---Effect---Element of delay in registering the FIR was treated with caution and care as there were chances to involve the innocent person in the crime.

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

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical Examination---Necessity---Deceased was not medically examined soon after her alleged murder---Deceased was buried and after 45 days of her burial, her dead body was exhumed in presence of Judicial Magistrate--- Deceased was thereafter examined by two doctors---Statements of both the doctors/witnesses showed that dead body of deceased was putrefied---Immediate medical examination of the deceased was necessary to corroborate the medical evidence with the ocular testimony of witnesses, who allegedly seen the injuries on the person of the deceased at the time of giving bath to her---After lapse of considerable long period and due to petrification, most of the wounds were not visible---Medical testimony was absolutely in conflict with the ocular evidence---Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by Trial Court.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Judicial confession before Magistrate, recording of---Violation of procedure by Magistrate while recording of confession---Evidentiary value---Confessional statement of accused was recorded after 13-days of the arrest of the accused---Longer the police custody of accused, lesser was the evidentiary value of his confession---Record showed that Judicial Magistrate had not turned out all the persons from the court room at the time of recording the confessional statement of the accused---Reader of the court was present in the Court Room, whereas defence had alleged that said Reader was close relative of the complainant party, thus violation had been committed by Judicial Magistrate in recording the confession of accused---Contents of said confessional statement did not corroborate with other pieces of evidence---Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by Trial Court.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Record showed that infirmities and discrepancies in the case of prosecution were found---Judgment reflected that the same was result of mis-reading and non-reading of evidence available on record---Facts and circumstances of the case had created doubts in the case of prosecution---Prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by Trial Court.

Abdullah Khan Kakar for Appellant.

Abdul Latif Kakar, Additional Prosecutor General for Respondent.

2017 P Cr. L J 713

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

SANAULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (S) 74 of 2015 and Murder Reference No. (S) 6 of 2015, decided on 19th December, 2016.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account did not support medical evidence---Prosecution case was that the accused fired with his pistol on the deceased while he was going by car along with two witnesses---Deceased was shifted to hospital in injured condition---Police reached there, got recorded his statement---Injured, however, succumbed to the injuries---FIR was lodged on the statement of the deceased---Police official/witness stated that he along with other official witness reached hospital after receiving information about the occurrence---Dying declaration of deceased was recorded, which contained his thumb impression---Other official witness narrated the same story---Evidence of said police officials was in contradiction to the medical evidence---Medical Officer had deposed during cross examination that deceased was brought to hospital within the period of 20 to 25 minutes, after occurrence, in injured condition and he was fully unconscious---Circumstances suggested that prosecution version about recording dying declaration of deceased stood falsified---Conflict between the statement of police officials and medical evidence established that dying declaration of the deceased had falsely been prepared by the police at the behest of complainant party---Said circumstances cast doubt on the prosecution case, benefit of which would resolve in favour of accused---Conviction and sentences recorded against accused by Trial Court were set aside in circumstances.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Statement of eye-witnesses---Allegation against the accused was that he made firing with his pistol on the deceased while he was going on car along with two witnesses---Ocular account was furnished by two witnesses---Said witnesses alleged that they were present in the car with the deceased, when accused made firing on the deceased---Said witnesses stated that at the time of alleged occurrence, window glasses of the car were closed---Said witnesses had stated that firing was made from a very close range, but such firing only hit the deceased and both the witnesses seated in the car did not receive any firearm injury nor any damage was caused to the car---Window glasses of the car were not broken despite the facts that windows were closed at the time of firing from outside---Both the witnesses though were on the target of accused, but only deceased was hit---Said factor did not appeal to the logic that by killing a person in presence of his close relative, no effort was made to cause any injury/kill the said persons/witnesses leaving them for evidence--- Presence of said alleged eye-witnesses with the deceased at the time and place of occurrence was highly doubtful---Conviction and sentences recorded against accused by Trial Court were set aside.

Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence--- Interested witnesses---Testimony of closely related witnesses---Reliance---Scope---One alleged eye witness was brother of deceased while other eye-witness was his cousin---Statement of a witness could not be discarded merely on the ground that he was related to the victim, but in order to remove any sort of ambiguity, corroboration was required to prove the version of interested and related witnesses, which was lacking in the present case---Conviction and sentences recorded against accused by Trial Court were set aside.

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

----S.302---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---In the present case, prosecution had alleged that motive for the occurrence was that accused had demanded Rs. ten lac from deceased (his cousin) for purchase of vehicle, which was not given by the deceased, due to which, accused became annoyed and committed murder of the deceased---Prosecution failed to prove the motive---Motive so narrated was not so strong that had provoked the accused to kill his cousin---Conviction and sentences recorded against accused by Trial Court were set aside.

(e) Criminal trial---

----Motive---Scope---Conviction could be recorded even in the cases, where no motive was alleged---Once motive alleged by the complainant, it was to be proved and in case of failure, benefit would be resolved in favour of accused.

Mst. Mir Shahbano v. Ahmed Jan 2011 YLR 1965 rel.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence--- Recovery of weapon of offence from accused---Prosecution failed to establish said recovery---Circumstances showed that recovery of weapon of offence was foisted upon accused just to strengthen the case of prosecution---Crime empties along with firearm were not sent to the firearm expert---No explanation had been furnished by the prosecution in this regard, thus alleged recovery became inconsequential---Conviction and sentences recorded against accused by Trial Court were set aside.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Scope---Prosecution had failed to prove the charge against the accused beyond shadow of doubt---Circumstances and facts had created sufficient doubts in the case of prosecution, benefit of which would be extended in favour of accused---Conviction and sentences recorded against accused by Trial Court were set aside.

(h) Criminal trial---

----Benefit of doubt---Scope---Benefit of even a slightest doubt had to be extended in favour of accused.

Nadir Ali Chalgari, Muhammad Sadiq Guman and Abdul Ghani Mengal for Appellant.

Jamil Akhtar Gajani, Additional P.-G. for the State.

Muhammad Sabir Jamali for the Complainant.

2017 P Cr. L J 747

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

PERVEZ ZAKI---Petitioner

Versus

The STATE through National Accountability Bureau, Balochistan, Quetta---Respondent

C. P. No. 1299 of 2015, decided on 28th November, 2016.

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

----S. 9(a) & (b)---Constitution of Pakistan, Art. 25---Pre-arrest bail, grant of---Discrimination---Standing Operating Procedure (SOP), non-compliance of---Petitioner was accused under National Accountability Ordinance, 1999, who sought his pre-arrest bail on the ground that value of subject matter of allegation was less than Rs. 100 million and according to their SOP, National Accountability Bureau could not investigate such matter---Validity---Standing Operating Procedure issued by Chairman NAB was applicable throughout the country---Discrimination in treatment to citizens by public authorities could not be allowed to sustain in opposition to law on the subject as constitutional protection under Art. 25 of the Constitution guaranteed equality of all citizens---Reference against petitioner was based on documentary evidence and the same had already been submitted before the Court---Investigation against accused was completed and proceedings had commenced---Petitioner was no more required for the purpose of investigation---Pre-arrest bail was confirmed in circumstances.

Rauf Bakhsh Kadri v. The State 2003 MLD 777; Amjad Hussain v. NAB C.P. No. D-1210 of 2016; State through Chairman NAB v. Hanif Hyder 2016 SCMR 2031 and Asfandyar Khan's case PLD 2001 SC 607 rel.

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

----Preamble---Petty offences---Jurisdiction of National Accountability Bureau---Scope---Aims and objects of National Accountability Ordinance, 1999, are to root out corruption in public departments of high magnitude---If National Accountability Bureau starts involving itself in small matters it would deviate from the objective of National Accountability Ordinance, 1999.

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

----S. 16(a)---Constitution of Pakistan, Art. 10A---Delay in trial---Effect---Fair trial has been guaranteed by Art. 10A of the Constitution---Inordinate delay in trials has not only eroded public confidence in judicial system on one hand but it also creates a sense of helplessness, frustration and anguish amongst them on the other hand---Expeditious and fair trial is by now Fundamental Right of accused person---Object of criminal law is to bring accused to justice as speedily as possible and if he is found guilty, he must be punished and if he is innocent, he should be acquitted forthwith of the charge.

Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645 rel.

Afrasiab Barakzai for Petitioner along with Petitioner on bail.

Muhammad Ewaz Zehri and Riaz Akhtar Tareen, Special Prosecutors (NAB) for the State.

2017 P Cr. L J 832

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

MUHAMMAD ISHAQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 275 of 2016, decided on 2nd January, 2017.

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

----Ss. 302, 324, 504, 506 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Appreciation of evidence---Benefit of doubt---Consultation and deliberation in lodging FIR---Accused was nominated in FIR---Said FIR was registered after engaging advocate, which was not only above board but seemed to be lodged after consultation and deliberation---No plausible or justifiable explanation in that regard was available on record--- Said circumstances rendered whole of the prosecution version doubtful, benefit of which would resolve in favour of accused---Conviction and sentences recorded against accused by Trial Court were set aside in circumstances.

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

----Ss. 302, 324, 504, 506 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with co-accused persons made firing with Kalashnikovs on the complainant party, resultantly, one person died and two were injured during the occurrence---Statement of all the prosecution witnesses made it clear that allegation against the accused was that of ineffective firing---Neither any prosecution witness received injury nor the deceased died on account of firing made by the accused---Circumstances cast doubt on the prosecution case, benefit of which would resolve in favour of accused---Conviction and sentences recorded against accused by Trial Court were set aside in circumstances.

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

----Ss. 302, 324, 504, 506 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Appreciation of evidence---Motive not proved---Effect---In the present case, accused had not been attributed firing on the person of deceased or any injured witness---No evidence on record was available to substantiate that the incident was premeditated or accused was connected with the motive part of the prosecution story---Conviction and sentences recorded against accused by Trial Court were set aside.

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

----Ss. 302, 324, 504, 506 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Appreciation of evidence---Weapon of offence was not recovered from the accused---Negligence on the part of Investigating Officer---Effect---Prosecution had failed to recover the Kalashnikov with which the accused allegedly made firing---Prosecution was bound to collect all the incriminating evidence during investigation but in the present case, it did not discharge its legal duty---Conviction and sentences recorded against accused by Trial Court were set aside.

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

----Ss. 302, 324, 504, 506 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, criminal intimidation, common intention---Appreciation of evidence---Benefit of doubt---Scope---Prosecution had failed to bring home the charge against the accused beyond any shadow of doubt---Trial Court, while convicting the accused, had failed to apply its judicial mind---Circumstances and facts had created sufficient doubts in the case of prosecution, benefit of which would be extended in favour of accused---Conviction and sentences recorded against accused by Trial Court were set aside.

Muhammad Aamir Rana for Appellant.

Habibullah Gul, Additional P.-G. for the State.

2017 P Cr. L J 1009

[Balochistan]

Before Zaheer-ud-Din Kakar, J

MUHAMMAD UMAR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 47 of 2017, decided on 13th March, 2017.

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

----S. 497--- Bail--- Appreciation of evidence--- Scope--- Deeper appreciation of record at bail stage could not be gone into---Only a tentative assessment was to be made just to find out as to whether the accused persons were prima facie connected with the commission of the alleged offence or not.

(b) 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---Prosecution case was that the accused persons along with co-accused had fired at the complainant party, as a result of which, one person had died while four persons sustained severe injuries---FIR against accused persons was lodged promptly---Specific role of firing at the deceased and injured was attributed to the accused persons---Record showed that seven persons armed with deadly weapons had made firing, due to which one person died at the spot and four persons sustained grievous injuries---Circumstances suggested that it could not be considered that each and every person was to be isolated and be taken separately for his own misdeed---Loss having been caused in one gathering, all the participants were to be taken into count---FIR as well as statements of the injured persons recorded under S. 161, Cr.P.C. and the statements recorded before the court placed the accused persons and co-accused persons in frontline of the case---Case had fallen within the prohibitory clause of S. 497, Cr.P.C.---Circumstances established that accused persons were involved in the commission of offence---Petition for bail was dismissed in circumstances.

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

----S. 497---Bail---Principle---Observations made in bail matter were tentative in nature and were not to be considered during trial of the accused.

Shuaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 rel.

Sardar Ahmed Haleemi for Applicants.

Habibullah Gul, A.P.-G. for the State.

2017 P Cr. L J 1061

[Balochistan]

Before Jamal Khan Mandohail and Zaheer-ud-Din Kakar, JJ

ABDUL MALIK---Petitioner

Versus

HAZRAT ALI alias LALAI and another---Respondents

Crl. Acq. Appeal No. 396 of 2009, decided on 13th March, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Material contradictions in the statement of witnesses---Effect---Prosecution case was that accused persons made indiscriminating firing on the brother of the complainant, who was seriously injured and succumbed to injuries on the spot---Record showed that prosecution had relied upon the statements of eye-witnesses including the complainant---Statements of said witnesses had contradicted each other on material points---No flaw was found in the judgment passed by the Trial Court---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Ocular account furnished by witnesses having relationship with the deceased---Reliance---Scope---Allegation against the accused persons was that they fired at the brother of complainant, who was seriously injured and succumbed to injuries on the spot---Ocular account was furnished by two witnesses, one was brother and other was nephew of the deceased, said eye-witnesses, therefore, were interested witnesses and reliance could not be placed thereon--- Appeal against acquittal was dismissed in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Weapon of offence was not recovered---Effect---During investigation, nothing had been recovered from the possession of accused persons---Circumstances suggested that prosecution had failed to connect the accused persons with the commission of offence---Appeal against acquittal was dismissed.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Principles---Findings of Trial Court could not be reversed unless the same were perverse, and illegal---Trial Court had found that "perusal of evidence showed that no other decision could be given except that the accused was guilty"---Trial Court committed complete misreading of evidence leading to miscarriage of justice---Appeal against acquittal was dismissed accordingly.

Azhar Ali v. The State PLD 2010 SC 632 rel.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Accused after his acquittal by Trial Court would enjoy double presumption of innocence in his favour---Court seized with appeal under S. 417, Cr.P.C. was obliged to be very careful in dislodging such presumption.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

Muhammad Aslam Chishti for Appellant.

Syed Ayaz Zahoor and Shams-ud-Din for Respondent No.1.

Ameer Hamza Mengal, DPG for the State.

2017 P Cr. L J 1113

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

Haji MUHAMMAD NAEEM---Appellant

Versus

MUHAMMAD YOUNAS and others---Respondents

Criminal Acquittal Appeal No. 381 of 2013, decided on 30th March, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account not proved---Prosecution case was that two persons were riding on motorcycle, made firing with pistol on the brother of complainant, which hit on his chest and he succumbed to the injuries at the spot---Accused persons after committing crime, tried to escape, but were chased and arrested by Levies Force---Ocular account was furnished by witnesses including complainant---Statements of all the witnesses were contradictory to each other by making dishonest improvements to such extent that had changed the prosecution version---Testimony of said witnesses was contradictory with regard to death of the deceased, whether he died at the spot or succumbed to the injuries on way to the hospital---All the witnesses made contradictory statements with regard to the information of occurrence conveyed to the Levies Force or the seat of injuries received by the deceased---Statements of such witnesses had lost the credibility and evidentiary value---Facts and circumstances of the case showed that deceased was murdered by the assailants in presence of his brother and two other close relatives but they did not try to overpower the assailants and no efforts were made by them to save the victim and assailants went away safely without any resistance, which was very unnatural---Circumstances established that presence of the witnesses at the time of occurrence and witnessing the crime was highly doubtful, benefit of which would resolve in favour of accused---Appeal against acquittal was dismissed in circumstances.

Muhammad Farooq v. State 2006 SCMR 1707; Dohlu v. State 2002 PCr.LJ 690 and Ashiq Hussain v. The State 1993 SCMR 417 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Where a single circumstance would create reasonable doubt in a prudent mind, same would be sufficient for acquittal of accused, not as a matter of grace or concession but as a matter of right.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence was a corroborative piece of evidence, which only indicated the number and seats of injuries and the kind of weapon used---In absence of trustworthy and reliable ocular evidence, the medical evidence could not support the prosecution case.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Motive--- When motive was alleged but not proved, then ocular evidence is required to be scrutinized with great caution.

2010 SCMR 97 and 2009 SCMR 916 rel.

(e) Criminal trial---

----Motive---Scope---Motive would cut both ways---If enmity persuaded a person to commit a crime, it could also be sufficient to falsely implicate the accused in a crime.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Record showed that prosecution failed to establish the presence of any of the witnesses at the time of occurrence, thus ocular account furnished by them was ruled out of consideration---When ocular account was ruled out other circumstances of the case providing corroboration or support to the ocular account would automatically collapse.

Faqeer Muhammad v. Shehbaz Ali 2016 SCMR 1441 rel.

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

----S.417(2-A)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Appeal against acquittal---Double presumption of innocence---Double presumption of innocence was attached to the order of acquittal---Interference in such situation was unwarranted unless the acquittal order was arbitrary, capricious, fanciful or against the record---In the present case, order of acquittal passed by the Trial Court was neither arbitrary, capricious, fanciful nor contrary to the evidence on record---High Court declined interference---Appeal against acquittal was dismissed accordingly.

Siyal Khan Durrani and Rehmatullah Sadozai for Appellant.

Aizaz Hussain Baqri for Respondents.

Abdul Lateef Kakar, Additional Prosecutor-General for the State.

2017 P Cr. L J 1155

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD KHAN and others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, CHAMAN and others---Respondents

C.P. No. 1114 of 2016 and C.P. No. 34 of 2017, decided on 17th April, 2017.

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

----Ss. 154, 155 & 156---Recording of FIR---Officer Incharge of Police Station was bound to lodge the report immediately on receipt of information with regard to commission of a cognizable offence---Officer Incharge of Police Station, in the presence case, refused to record FIR only because, in his opinion, the allegations conveyed to him were false---Validity---Officer Incharge of Police Station was bound to reduce into writing, any information given to him, either in writing or oral, relating to commission of an offence cognizable in nature under S. 154, Cr.P.C.---Section 155, Cr.P.C. dealt with the information in respect of offence being non-cognizable in nature---Section 156, Cr.P.C. provided procedure, required to be adopted by an Officer Incharge of Police Station to investigate in a cognizable case reported to him---Investigation was to be made only after recording the FIR---Record showed that legal procedure had not been adopted by the Officer Incharge of Police Station---No report was submitted to the concerned court, or other steps, as provided therein, were taken---Information given by the petitioner about commission of offence remained unattended---Officer Incharge of Police Station had conducted some inquiry as per order of the Ex-Officio Justice of Peace but with no results---Report of inquiry filed before the court did not amount to an investigation as provided under S. 157, Cr.P.C.---Said report was based on narration of the facts as made in statement of the petitioner, or as described by the nominated person---Mere narration of facts did not serve the purpose---Officer Incharge of Police Station was required to arrive at a decision that cognizable offence was made out, if so, FIR was to be registered but there was complete failure on the part of concerned authorities---Complaint of the petitioner and report submitted by the Officer Incharge of Police Station, had made out offence of cognizable nature, which was required to be registered---Constitutional petition was accepted in circumstances and Officer Incharge Police Station concerned was directed to register the FIR against the proposed accused persons.

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

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

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---FIR, registration of---Scope---Petitioner filed application for registration of case against the accused with the allegation that they committed murder of his daughter but same was dismissed by Ex-Officio Justice of Peace---Validity---Ex-Officio Justice of Peace under S. 23-A(6), Cr.P.C. was to examine whether the information disclosed by the petitioner did or did not constitute a cognizable offence and if it did, then to direct the concerned Officer Incharge of Police Station to record FIR without going into the veracity of the information in question---In the present case, offence of murder was alleged against the proposed accused persons, by the petitioner, Ex-Officio Justice of Peace while exercising the powers under S. 22-A, Cr.P.C. completely failed to understand the nature of the powers conferred on him, thus, failed to exercise the powers vested in him---Constitutional petition was accepted in circumstances and Officer Incharge Police Station concerned was directed to register the FIR against the proposed accused persons.

Ajmal Khan Kakar for Petitioner (in C.P. No. 1114 of 2016).

Sohail Ahmed Rajpoot for Petitioner (in C.P. No. 34 of 2017).

Abdul Latif Kakar, Additional P.-G. for the State.

Samiullah Khan for proposed accused Abdul Raheem and others.

2017 P Cr. L J 1198

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

ABDUL MANAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 216, 218 and Murder Reference No.8 of 2014, decided on 15th January, 2016.

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

----Ss. 302(b), 420, 201 & 34---Qatl-i-amd, cheating and dishonestly inducing delivery of property, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Supplementary statement---Scope---FIR was lodged on the statement of complainant that unknown person committed murder of her husband by firearm---Subsequently, on the supplementary statement of son of deceased, accused was arrested and on his disclosure, complainant/widow of deceased was also arrested as co-accused---Accused narrated the scenario of crime and stated that in fact he had secretive intimacy with the wife of deceased and on her instigation, he murdered the deceased at his house---Accused had disclosed that after committing the murder of the deceased, he had thrown the pistol on his roof which was missing on the following day---Disclosure of co-accused was replica of that of the accused---Disclosure of co-accused was inadmissible in evidence, because the same was not followed by any sort of discovery or recovery---Statement/disclosure of accused could not be used against the co-accused---Record showed that except the statement of son of deceased, the rest of the prosecution witnesses were corroborative in nature and had no direct nexus with the case---Statement of witness/son of deceased showed that he had seen his mother talking to accused but at subsequent stage, he stated that his mother was innocent and he had implicated his mother on the instigation of his maternal uncle and his mother had no nexus with the case---Supplementary statement of the witness recorded by the police showed that he did not nominate his mother in the crime, however in his cross-examination he made certain disclosures which were not part of his supplementary statement and implicated his mother---At subsequent stage, he again exonerated his mother, therefore, statement of said witness was not free from doubt and required independent corroboration---Such variances led to the inference that witness was not worthy of credence, therefore his evidence could not be relied upon for recording conviction---Accused were acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 420, 201 & 34---Qatl-i-amd, cheating and dishonestly inducing delivery of property, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Recovery of weapon of offence---Relevance---Eight empty shells with a bullet's lead of TT pistol were recovered from the place of occurrence and weapon of offence (pistol) was recovered from the house of accused---Recovery witness stated that pistol was produced by the accused from his bed and other inmates of house also resided there---Question arose as to why police did not search the house of accused from the date of his arrest till the recovery of the pistol which was lying on his bed was not removed by any other inmates of the house---Recovery of pistol, which was not hidden in any secret place, but from room of a jointly owned house, on the pointation of accused was not free from doubt---Record showed that pistol and crime empties were sent to firearm expert after the delay of one and half years---Said delay had not been explained by the prosecution, which cast serious doubt in the prosecution case---Recovered pistol and empties were sent together, which destroyed the prosecution case---Report of firearm expert, in circumstances, was of no avail to the prosecution---Recovery witness deposed that he had no knowledge that who pointed out the place of recovery---Said witness stated that brother-in-law of the deceased was accompanying them but said person was not cited as witness---Circumstances established that alleged recovery was not free from doubt, benefit of which would resolve in favour of accused---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Ali Sher and others v. The State 2008 SCMR 707 rel.

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

----Arts. 38 & 39---Confession in police custody or before police---Admissibility---Confession made before the police was not admissible in evidence.

Mst. Irshad Bibi v. Iftikhar and others 2008 SCMR 841 rel.

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

----Art. 40---Information received from accused, proof of---Scope---If the statement and information from the accused amounted to confession or otherwise, was supported by the discovery of the fact, same might be presumed to be true and not to have been extracted.

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

----Art. 40---Recovery when could not be termed as discovery---"Recovery" of article could not be termed as "discovery", when it was not recovered from any hidden place and if in normal course, the Investigating Officer/agency was able to see it and took into possession without any statement of the accused for pointing it out.

Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604 rel.

(f) Criminal trial---

----Supplementary statement---Scope---Supplementary statement being afterthought could not be made basis for conviction.

(g) Criminal trial---

----Extra-judicial confession--- Evidentiary value--- Extra-judicial confession in the shape of disclosure before the police was not liable for consideration as the same was inadmissible in evidence.

The State v. Syed Abdul Qayum 2001 SCMR 14; Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Abid Ali alias Ali v. The State 2011 SCMR 161 rel.

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No. 216 of 2014).

Ahsan Rafiq Rana for Appellant (in Criminal Appeal No. 218 of 2014).

Abdul Sattar Durrani, Additional Prosecutor General for the State.

2017 P Cr. L J 1305

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

MEHMOOD KHAN---Appellant

Versus

SOHAIL KHAN and another---Respondents

Criminal Acquittal Appeal No. 143 of 2015, decided on 29th March, 2017.

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

----S. 489-F---Dishonestly issuing a cheque---Ingredients---Dishonest intent was the basic requirement to constitute an offence under S.489-F, Penal Code, 1860---Purpose of issuance of cheque must be either repayment of a loan or fulfilment of an obligation, and arrangement with Bank to ensure that the cheque would be honoured were the remaining requirements.

Allah Ditta v. The State 2013 SCMR 51 and Muhammad Sultan v. The State 2010 SCMR 806 rel.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing cheques---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused issued two cheques worth Rs. 4,00,000 and 6,00,000 respectively but were dishonoured when presented to the Bank, for insufficient funds---Complainant during cross-examination stated that there was some compromise between the parties in another case and accused had paid him an amount of Rs. 1,00,000 out of Rs. 3,00,000 as agreed---Said fact was not mentioned in the FIR---Witness who described his status as mediator, stated that he arranged settlement of the dispute of the parties and it was decided that accused would pay an amount of Rs.10,00,000---Accused issued two cheques, which were deposited in his account as the complainant had no bank account---Settlement was in writing---Statement of witness was in total negation of the statement of complainant, which lessened the credibility of the both---Investigating Officer had negated the statement of witness---Prosecution failed to meet the requirements of constituting an offence---Dishonest intent on part of the accused was missing---Issuance of cheques though asserted and not denied, but the purpose for its issuance was neither to repay a loan or to fulfil an obligation, to bring it within the ambit of "offence"---Settlement deed stated a new story, which was contrary to the statement of complainant and his witness, thus un-reliable and not worthy of consideration---Circum-stances established that complainant failed to point out any illegality in the judgment passed by the Trial Court, or the instances whereby the available material was mis-appreciated or not appreciated---Appeal against acquittal was therefore, dismissed.

Qari Rehmatullah for Appellant.

Nemo for Respondents.

2017 P Cr. L J 1371

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

BIBI ZAWAR---Petitioner

Versus

SESSIONS JUDGE QUETTA and 2 others---Respondents

C.P. No. 252 of 2017, decided on 18th May, 2017.

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

----S. 6(1)(b)---Act of "terrorism"---Determination as to whether an offence would fall within the ambit of "terrorism"---Essential ingredients to form an act of "terrorism" were the allegations made in the FIR; material collected during investigation and surrounding circumstances---To see as to whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss. 6, 7 & 8 of Anti-Terrorism Act, 1997---Motivation, object, design and purpose behind the said act was to be seen in order to determine as to whether a particular act was an act of terrorism or not---Action resulted in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area would amount to terror---Such action would squarely fall within the ambit of S. 6 of the Anti-Terrorism Act, 1997 and would be triable by Anti-Terrorism Court.

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

----Ss. 302, 324, 365, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6(b), 7(e) & 23---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abduction with intent secretly and wrongfully to confine a person, rioting, rioting armed with deadly weapon, unlawful assembly---Application for transfer of case from ordinary criminal court to Anti-Terrorism Court by way of inserting S. 7, Anti-Terrorism Act, 1997---Scope---FIR showed that due to indiscriminate firing of the accused persons at the house of the complainant-petitioner, resulted in the murder of two persons, causing injuries to five other persons and abduction of two persons fell within the ambit of S. 6, Anti-Terrorism Act, 1997---Action of the accused resulted in striking terror and sence of insecurity amongst the people in the vicinity, which amounted to create terror in the area---Circumstances established that Anti-Terrorism Court had exclusive jurisdiction in the case as the action of accused squarely fell within the ambit of S. 6, Anti-Terrorism Act, 1997---Constitutional petition was allowed with the direction to the concerned Investigating Officer to insert S. 7, Anti-Terrorism Act, 1997 in the FIR.

Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517 and Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370 rel.

Sher Baz for Petitioner.

Arbab Tahir for Respondent No.2.

Saleem Baloch, A.A.-G. for the State.

2017 P Cr. L J 1391

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SALEH MUHAMMAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 318 and Criminal Revision No. 26 of 2013, decided on 2nd May, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Prosecution case was that accused made firing with pistol, due to which two bullets hit the father of complainant, who succumbed to the injury---Ocular account was furnished by witnesses comprising complainant, his brother and cousin---Said witnesses allegedly claimed to be eye-witnesses but their statements created doubt with regard to their presence at the place of occurrence and witnessing the crime---Record showed that FIR was lodged on the basis of fard-e-bayan of complainant, but the complainant while appearing in the court made his ignorance as to who had written the said fard-e-bayan---Nothing was available on record that fard-e-bayan was written on the direction of complainant---Contents of fard-e-bayan and FIR were silent about the presence of cousin of complainant/eye-witness at the time and place of occurrence---Complainant and his brother/eye-witness were in government jobs but nothing was on record to show that said witnesses were on leave from their offices on the day of occurrence---Said witnesses deposed that alleged incident took place at 10.30 a.m. and two bullets hit to the deceased but their statements were in conflict with the medical evidence---Medical Officer, who examined the deceased stated that dead body of the deceased was brought to the hospital at about 10.00 a.m. and deceased had received only one bullet injury on his body---Medico-legal Certificate and inquest report of the deceased did not reflect the presence of complainant and his brother/eye-witness---Record showed that accused-appellant was an aged man of about 70-years, whereas prosecution had alleged that in the presence of two sons and a nephew, the accused-appellant came on cycle, committed the murder of deceased with fire shot and fled away on cycle---Said three persons/eye-witnesses did not resist even to save the deceased or overpowered 70-years old culprit---Conduct of said witnesses was unnatural and did not appeal to the logic that an old man of 70-years committed the murder of the father of two young men and uncle of the other eye-witness, but they played the role of audience by letting the culprit escape---Evidence of interested and related witnesses lacked independent corroboration on material aspects---Circumstances of the case created doubt about the presence of eye-witnesses at the time and place of occurrence and the medical evidence was not in line with the ocular account, benefit of which would resolve in favour of accused---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Faisal Mehmood and others v. State 2010 SCMR 1025 and Ms. Najiba and others v. State 2015 SCMR 988 ref.

Muhammad Asif v. The State 2017 SCMR 486; Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Accused-appellant was arrested from a hotel and T.T. pistol along with live cartridges were recovered from his possession---Evidence of official witness showed that at the time of recovery proceedings, certain other persons were present in the hotel, but none of the witnesses was associated in the recovery proceedings---Investigating Officer did not join any person to witness the recovery, hence the alleged recovery of crime weapon lacked independent corroboration and suffered from non-compliance of S. 103 Cr.P.C.---Empties and crime weapon were dispatched together to Forensic Science Laboratory but said corroborative piece of evidence by itself was not sufficient for conviction of the accused-appellant---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Riaz Ahmed v. The State 2010 SCMR 846 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Accused was entitled to be extended benefit of doubt as a matter of right---Accused could not be deprived of benefit of doubt, merely because there was only one circumstance, which created doubt in the prosecution case.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ali Ahmed Lehri for Appellants.

Rauf Atta and Baqir Bakhtiyar for the Complainant/Petitioner.

Muhammad Yahya Baloch, Deputy P.G. for the State/Respondent.

2017 P Cr. L J 1426

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

The STATE through Regional Director/Force Commander, Anti-Narcotic Force Balochistan---Appellant

Versus

MUHAMMAD BAKHSHAL and another---Respondents

Criminal Acquittal Appeal No. 94 of 2012, decided on 26th April, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Appeal against acquittal---Prosecution case was that 102 packets of charas were recovered from the vehicle, wherein, accused/respondents were seated---Prosecution produced witnesses including complainant, recovery witness and Investigating Officer in order to prove its case---Complainant reiterated the contents of Murasila on the basis of which FIR was registered---Recovery witness stated that he witnessed the preparation of parcels and other formalities on the spot besides identification of articles produced in the Trial Court---Said witness acknowledged his signatures on recovery memos---Investigating Officer stated about the investigation conducted by him---Said witnesses were cross-examined at length but remained firm on material points---Main accused/driver was rightly convicted and sentenced as he was custodian of the vehicle and responsible for article concealed/lying in the vehicle, however, case of present respondents was on different footings---Said accused/respondents raised plea at initial stage in respect of their taking lift in the said vehicle which could not be rebutted through reliable and confidence inspiring evidence---Prosecution witnesses did not utter even a single word showing that the said accused/respondents were equally responsible for contraband kept and concealed in the secret cavities of the vehicle---Circumstances established that accused/respondents were not involved in the offence---Appeal against acquittal was dismissed accordingly.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution was duty bound to prove its case beyond the shadow of reasonable doubt---Benefit of doubt, if any would be extended in favour of accused.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence was attached with every acquittal---Such order, unless the same was arbitrary, capricious, fanciful and against the record could not be interfered.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

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

----S. 417(2-A)---Appeal against acquittal---Assessment of evidence---Scope---Standards of assessing evidence in appeal against acquittal were different from the standards of assessing evidence in appeal against conviction--- Courts were always slow in exercising jurisdiction in case of appeal against acquittal, unless, it was found that gross injustice had been done---In the present case, acquittal order was neither perverse nor shocking or contrary to the evidence available on record---Appeal against acquittal was dismissed accordingly.

PLD 2015 Pesh. 143 rel.

Shams-ud-Din Achakzai, Special Prosecutor, ANF for Appellant.

Nadir Ali Chalgiri and Rahim Ullah Hajizai for Respondents.

2017 P Cr. L J 1446

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

REGIONAL ELECTION COMMISSIONER, NASEERABAD AT DERA MURAD JAMALI---Appellant

Versus

TARIQ MAGSI---Respondent

Criminal Acquittal Appeal No.(s) 128 of 2015, decided on 21st March, 2017.

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 78(3)(d), 82 & 94---Penal Code (XLV of 1860), Ss. 199, 200 & 471---Corrupt practice, false statement made in declaration, using as true such declaration knowing it to be false, using as genuine a forged document---Fake educational degree, determination of---Regional Election Commission being complainant/appellant filed a direct complaint against respondent with the allegation that respondent filed his nomination papers with forged educational degrees---Inquiry under S. 200, Cr.P.C. was conducted by the Judicial Magistrate, wherein it was found that the degree obtained by the respondent was fake and bogus---On the basis of said report, charge was framed against the respondent to which he pleaded not guilty and claimed trial---During trial, respondent moved application under S. 265-K, Cr.P.C. for his acquittal, which was accepted---Validity---Record showed that complainant failed to specifically mention as to which degree (Matric, F.A, B.A) was fake---Complainant was under legal obligation to prove the factum of genuineness or otherwise of the degrees by producing the witnesses or representatives of the college/university which had allegedly issued the same---Complainant failed to produce any witness from any college/University who could have testified the genuineness or otherwise of the degree---Circumstances showed that complainant wanted to get the respondent convicted and sentenced without legally and properly proving the charge against him---Circumstances established that complainant had failed to prove guilt of the respondent to the hilt---No illegality, irregularity, misreading and non-reading could be pointed out by the appellant/complainant in the judgment passed by the Trial Court, thus appeal was dismissed in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Series of dents and doubts were not required in prosecution case for giving benefit of doubt; if a single doubt was created accused would be entitled to the benefit of doubt, not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence was earned by the accused in case of his acquittal---Findings of acquittal could not be set aside unless it was proved that the findings arrived at by the Trial Court while acquitting the accused were based on misreading, non-reading of evidence or the acquittal was perverse, shocking, artificial and ridiculous.

Haji Paio Khan v. Sher Baiz and others 2009 SCMR 803 rel.

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

----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Parameters---Different parameters were available to deal with an appeal against acquittal and an appeal against conviction---Appreciation of evidence, in appeal against conviction was done strictly and in appeal against acquittal such rigid method of appreciation of evidence was not to be applied.

Muhammad Rasheed for Appellant.

Shams-ul-Rehman Rind and Zulfiqar Ali Jhakrani for Respondent.

2017 P Cr. L J 1491

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shakeel Ahmed Baloch, JJ

ABDUL MANAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.(S)126 of 2015, decided on 30th June, 2016.

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

----Ss.302, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Dying declaration---Scope---Accused-appellants along with absconding accused persons were alleged to have launched a murderous assault upon complainant, resultantly, he became seriously injured and after reaching the hospital, he submitted a report for registration of FIR---Injured/complainant, however, succumbed to the injuries---Trial Court recorded conviction against the accused-appellant on the basis of report submitted by deceased considering the same as dying declaration---Accused-appellants had alleged that the report submitted by the complainant was wrongly considered as dying declaration as the said report was neither written on prescribed pro forma nor requisite certificate of the doctor was appended therewith---Validity---Admittedly, dying declaration was not written on the prescribed form and same did not carry the certificate from the doctor nor in the beginning it contained the routine observation by the police---Such omissions would not detract the evidentiary value of the dying declaration if the same was made without delay; that deceased could speak; that there was no doubt about identity of the accused; that there was no motive for which the deceased while nearing his death would lie and there was no element of prompting---In the present case, record transpired that soon after the occurrence, the complainant/injured submitted report promptly without any consultation and deliberation---Record did not show that said report was rendered at the instance of anyone else or the deceased had submitted the report after being tutored by someone---Submission of report and contents therein were sufficiently corroborated by the statements of prosecution witnesses---Injuries mentioned in the report were corroborated by the medical evidence furnished by the Medical Officer, as such, said report was rightly treated as "dying declaration"---Appeal against conviction was dismissed in circumstances.

Mst. Zahida Bibi v. The State PLD 2006 SC 255; Dilmurad Diljan alias Dilo v. The State 2015 PCr.LJ 1389; Zareef Khan v. State PLD 1977 SC 612; Naimat Ali v. The State 1981 SCMR 61; Mst. Shamim Akhtar v. Fiaz Akhtar PLD 1992 SC 211; Farmallah v. Qadeem Khan 2001 SCMR 1474 and Crown v. Abdul Ghani PLD 1956 (W.P.) Lahore 300 rel.

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

----Art. 46---"Dying declaration"---Admissibility---When a man, who had recorded his statement prior to his death shed light upon the cause of his death, such statement would be admissible in evidence.

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

----Art. 46---Dying declaration---Evidentiary value---Dying declaration was worthy of credence for recording conviction, when there was neither any evidence on record nor even a suggestion that dying complainant submitted his report after consultation or receiving hints from others.

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

----Art. 46--- Dying declaration--- Scope--- If the contents of dying declaration indicated that what was alleged, was probably true and no attempt had been made to exaggerate the incident or falsely implicated someone, it would be considered as "dying declaration"---Such dying declaration would be termed as strong piece of evidence.

Muhi-ud-Din Sasoli and Nadir Ali Chalgari for Appellants.

Jamal Khan Lashari for the Complainant.

Jameel Akhtar Gajani, Deputy Prosecutor-General for the State.

2017 P Cr. L J 1521

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove, J

ALLAH DINA---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. (s) 9 of 2017, decided on 13th March, 2017.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S. 345---Appreciation of evidence---Waiver or compounding of offence---Scope---Prosecution case was that accused and his co-accused made firing on complainant party, which resulted the instantaneous death of brother of complainant and a person sitting in a nearby hotel received injuries---After registration of case, accused/appellant was arrested, tried and convicted and sentenced---Convict filed appeal, which was dismissed---Parties thereafter compromised the matter and the same was filed before the Trial Court for acceptance and acquittal of accused/appellant on the basis thereof---Trial Court rejected the compromise on the ground of suppressing the material facts from the court---Validity---Record showed that deceased was survived by father, mother, two wives, daughter and son but compromise was effected between father, brother and son of deceased---Brother of deceased did not fall in the ambit of legal heirs of deceased---Witnesses stated that they were sole legal heirs of deceased and competent to pardon the accused because mother, daughter and a wife had died---Deceased was survived by another wife, but as the deceased before his death had divorced the said wife, as such she did not fall within the definition of legal heir of deceased---Validity---If the deceased, before his death had divorced his wife, he was legally bound to convey the factum of divorce to the Union Council concerned in writing---No such record was produced through the representative of union council concerned---Factum of death of wife and daughter of deceased was required to be proved in accordance with law---Record transpired that death certificates of wife and daughter of deceased were issued by Chief Officer Municipal Committee on the basis of information conveyed by brother of deceased was a matter of grave concern and thereby he exposed himself to be taken to task because his act smacked unofficial and irresponsible attitude---Allegedly, real sister of accused was another wife of deceased but father of deceased intentionally did not disclose said fact in his affidavit---Son of deceased was aged about 14/15 years, therefore, compromise by a person who had not attained the age of puberty was questionable and a hurdle in petitioner's way--- Revision petition was dismissed in circumstances.

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

----S. 345---Compromise---Legal heirs---Court being custodian of the Fundamental Rights of all the legal heirs of deceased could not shut its eyes from the illegalities, irregularities and suppression of material facts by the petitioner and the legal heirs.

(c) Administration of justice---

----Every person who wanted indulgence of the court in any matter was legally and morally bound to approach the court with clean hands.

Ali Hassan Bugti for Petitioner.

Jameel Akhtar, Additional P.-G. for the State.

2017 P Cr. L J 1550

[Balochistan]

Before Zaheer-ud-Din Kakar, J

YASIN and 3 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 43 of 2016, decided on 17th May, 2017.

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

----Ss. 337-A(ii), 337-F(i), 337-F(ii) & 34--- Shajjaj-i-madihah, damiyah, badi'ah, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that accused-appellants while armed with weapon and knives assaulted at the complainant and his brother, resultantly, they sustained injuries---Ocular account was furnished by the witnesses including complainant and injured---Said witnesses attributed specific role to the accused-appellants---In spite of lengthy cross-examination of the eyewitnesses, nothing beneficial could be elicited rendering any help to the case of accused-appellants---Medical evidence furnished by the Medical Officer, who medically examined the injured supported the ocular account---Circumstances established that prosecution had proved the guilt of the accused-appellants to the hilt through cogent, coherent, trustworthy and confidence inspiring evidence---Revision petition was dismissed in circumstances.

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

----Ss. 337-A(ii), 337-F(i), 337-F(ii) & 34--- Shajjaj-i-madihah, damiyah, badi'ah, common intention--- Appreciation of evidence---Ocular and medical evidence---Scope---Where there was forthright and convincing eye account same would be preferred as compared to that of medical evidence.

Sarfaraz v. The State 2000 SCMR 1758 and Muhammad Hanif v. State PLD 1993 SC 895 rel.

(c) Criminal trial---

----Occular version/medical evidence---Scope---Medical evidence could not determine question of guilt or innocence but ocular version was required to be taken into consideration at first instance for the purpose.

Machia v. State PLD 1976 SC 695 rel.

(d) Criminal trial---

----Witness---Minor contradictions or improvements in the statements of witnesses---Effect---Minor contradictions or improvements in the statements of witnesses were to be overlooked and only material contradictions were to be considered.

Ranjha v. The State 2007 SCMR 455 rel.

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

----S. 439---Revisional jurisdiction of High Court---Scope---High Court could exercise revisional jurisdiction if findings of lower forum were shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectures, presumptions or erroneous assumption.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

Chaudhry Muhammad Iqbal for Petitioners.

Mushtaq Anjum for the Complainant.

Yahya Baloch, DPG for the State.

2017 P Cr. L J 1623

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

AZIZ ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 80 of 2016, decided on 31st December, 2016.

Penal Code (XLV of 1860)---

----S. 377---Sodomy---Appreciation of evidence---Ocular account did not corroborate the medical evidence---Prosecution case was that the accused-appellant committed sodomy with the minor son of complainant---Record showed that victim appeared as witness during trial but did not state a word in respect of unnatural offence committed upon him---Victim deposed that his shalwar was taken off by the accused-appellant who used filthy language against him---Medical Officer rendered positive opinion in respect of sodomy on the basis of tenderness observed by him on the anal region of the victim---Section 377, Penal Code, 1860 provided that penetration was necessary to constitute the carnal intercourse---In the present case, victim was silent about penetration---Opinion rendered by the medical witness was not conclusive in nature---Medical opinion was not in line with the procedure contemplated in the medical jurisprudence---Medico-legal Report showed the tenderness of anal region of the victim, which under the medical jurisprudence could be due to constipation or in case of irregular bowel habits---Medical Officer had failed to use the proctoscopy instrument in order to obtain the anal swab and did not notice any sort of abrasion or injury on the anal region of the victim---No positive report was on record with regard to semen stained clothes of the victim and the accused-appellant---Blood group of accused was not obtained in order to match the semen stains found on the clothes of victim---Mere tenderness of the anal region was not a conclusive proof of sodomy---Circumstances established that prosecution failed to prove the guilt of accused beyond shadow of doubt---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Appellant present on bail.

Muhammad Yunus Mengal, A.P.-G. for the State.

2017 P Cr. L J 1654

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Syed Anwar Aftab, JJ

DOST MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE BARKHAN AT RAKHNI and another---Respondents

C.P. No. 646 of 2015, decided on 31st May, 2017.

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

----S. 344---Adjournment---Scope---Reasons for adjournments must be in writing---Duration for adjournment must be for such time as considered reasonable by the court---Adjournment or postponement of the proceedings should be for a definite time and period and not indefinitely.

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

----S. 344---Postponement or adjournment of proceedings---Incident, in the present case, was reported by complainant, resulting in registration of FIR---Police Report was submitted with nomination of accused-petitioner and co-accused persons---Trial Court directed to place the case in dormant for the reason that complainant and the eye-witnesses were not available, while accused persons were on bail---accused-petitioner contended that no order could be passed to place the criminal case in dormant for the reason of non-availability of prosecution witnesses---Validity---Trial Court had adjourned the proceedings indefinitely, thus violating the mandate of law---Reasons behind the impugned order were that the complainant and one of the eye-witnesses were involved in a murder case and were absconding---Said reasons in no way empowered the Trial Court to adjourn the proceedings for indefinite period---Case could not be kept pending for the evidence of the persons who were fugitive from law---Fugitive from law lost his normal rights, granted by law, procedural or substantial---Absence of the witnesses would not mean a "reasonable cause" to adjourn the case for an indefinite period---Constitutional petition was accepted by setting aside the impugned order.

Waseem Khan Jadoon for Petitioner.

Mrs. Noor Jahan Kahoor, Additional Prosecutor-General for Respondents.

2017 P Cr. L J 1715

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

MUHAMMAD AZAM DAVI---Applicant

Versus

The STATE through FIA---Respondent

Criminal Bail Application No. 56 of 2017, decided on 9th March, 2017.

(a) Prevention of Electronic Crimes Act (XL of 2016)---

----Preamble---Scope and object of---Prevention of Electronic Crimes Act, 2016---Act was promulgated with the aim to prevent unauthorized acts with respect to information system and to provide a mechanism for investigation, prosecution, trial and international cooperation in respect of offence relating to electronic crimes.

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

----S. 497---Penal Code (XLV of 1860), S. 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 16(2), 20(1), 24(c)(d)---Unauthorized use of identity information, offences against dignity of a person, cyber stalking, abetment---Bail, grant of---Further inquiry---Neither any allegation of unauthorized use of identity information was mentioned in FIR nor any question of dignity had been disclosed---FIR was silent about any stalking or still haunting and neither any watch or spy allegation followed by taking photograph or making a video had been mentioned in FIR nor any such evidence was brought on record---Allegedly accused in order to settle his personal grudge and with the object to avenge the Speaker of Provincial Assembly for his termination and denial of extension in his service was disclosing sensitive information to cause injury and harm the dignity of Speaker of Provincial Assembly therefore the question whether the alleged disclosure would fall within the ambit of terrorism or was based on personal motive would also require further probe---Whether the disclosure of co-accused implicating the accused in the case would be admissible in evidence against the accused in view of Arts. 38 & 39 of Qanun-e-Shahadat, 1984 was a question of prime importance in the case, therefore, accused's case would fall within ambit of further inquiry---Accused was not required for purpose of investigation---Bail was granted accordingly.

Muhammad Aslam Chishti and Ahsan Rafiq Rana for Applicant.

Shaukat Ali Rakhshani for the Complainant.

Taj Muhammad, Law Officer along with Naimatullah, Investigation Officer, FIA for FIA.

Muhammad Hassan Mengal, Standing Counsel for the State.

2017 P Cr. L J 302

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MOHAMMAD AZAM---Petitioner

Versus

AZAM and 2 others---Respondents

Criminal Revision No. 116 of 2015, decided on 28th April, 2016.

Penal Code (XLV of 1860)---

----Ss. 447, 34 & 174---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hadd) Act, 1985, S.14---Criminal Procedure Code (V of 1898), Ss.68, 70, 71, 72 & 353---Criminal trespass, common intention, theft liable to tazir---Summoning and examination of prosecution witnesses--- Procedure--- Closing of evidence---Scope---When case was at the stage of recording evidence of prosecution witnesses, evidence of three most important witnesses, was closed by the Trial Court---Validity---Initially summonses were issued to said three witnesses and thereafter, bailable and non-bailable warrants were issued, but warrants were not executed and witnesses did not appear before the court---Responsibility was shifted upon the prosecution to produce said witnesses at its own---Where, after availing several opportunities, the prosecution could not produce the witnesses before the court, Trial Court vide impugned order closed the evidence of the witnesses---Court had ample powers to implement its orders through coercive measures as well as by way of other legal means, but had not tried to implement its order in its letter and spirit---When, the warrant of arrest was issued, it must be executed in all eventualities; except that attendance of the witness had become impossible due to his death, or by leaving the country, or any other sufficient reason---No such circumstances existed in the present case---Witnesses were government servants; i.e. one was Patwari and other two were Police Officials and it was impossible for the complainant, to produce them before the court without any warrant---Once, the Trial Court, had issued the process for attendance of the witness, it should have been complied with in accordance with law---If a witness, despite service of summons or notice deliberately, without any sufficient reason, did not appear before the court of law, he would commit offence under S.174, P.P.C. and criminal proceedings could be initiated against him---If the Executing Authority, did not implement the order of the court, it would become contempt of court and executing authority could be proceeded under the Contempt of Court Act, as well---Official witness, who would avoid the process of the court deliberately and would not appear before the court and resultantly, the proceedings of the case were procrastinated, it was a misconduct, as well and the competent authority, could be directed by the court to take disciplinary action against the concerned officials---Trial Court, before closing the evidence, had taken none of said steps under the law and shown its helplessness; which was not warranted by law---No bar lay for the prosecution to produce the witnesses at its own without process of the court, but once the court had issued the process to procure the attendance of a witness, then that should be completed by the court---If the prosecution wanted to produce the witness on its own responsibility, the court was not responsible---Trial Court by closing evidence of witnesses, whose evidence was essential for the just decision of the case, had committed grave illegality---Impugned order of the Trial Court was set aside, with direction to ensure the attendance of said witnesses, strictly in accordance with law and decide the case within a period of three months.

Ch. Mahboob Ellahi for Petitioner.

Mohammad Najeeb Raja for Respondents Nos.1 and 2.

2017 P Cr. L J 819

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Mst. SOBIA SAGHIR---Petitioner

Versus

The STATE through Police Station City Kotli and 2 others---Respondents

Cr. Revision Petition No. 205 of 2016, decided on 15th December, 2016.

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

----S. 498---Pre-arrest bail, grant of---Duty of court---Deep scrutiny or minute study of evidence on record was neither permissible nor desirable, however court was not expected to make an order in vacuum---Court was supposed to make a tentative assessment of the FIR, statements of prosecution witnesses recorded under S. 161, Cr.P.C., the recovery evidence, the defence plea, if any; other circumstances and facts of the case in order to reach a conclusion as to whether in the given circumstances, accused was entitled to the concession of bail or not.

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

----S. 498---Pre-arrest bail, grant of---Powers of the court---Scope---Powers available to the court under S. 498, Cr.P.C., were discretionary, which must be exercised with due care and caution; especially in the cases of heinous offences involving the penalty of death or life imprisonment or imprisonment for 10 years---Discretion under the provisions of S. 498, Cr.P.C., was to be exercised by the court judicially and not arbitrarily---Anticipatory bail under S. 498, Cr.P.C., being extraordinary relief, was granted on extraordinary grounds---Good ground for post arrest bail, was no ground for pre-arrest bail---Pre-arrest bail should not be allowed in a routine matter, rather the same was to be granted when accused was likely to be arrested for ulterior motives; such as humiliation or unjustified harassment, or where prosecution seemed to be actuated to cause an irreparable injury to reputation and liberty---Distinction between the principles governing pre-arrest and after arrest bails, were to be well known and that distinction, was not to be lost by the court while deciding the matter of pre-arrest bail.

Kareem Dad v. Zaheer and another 2004 SCR 36 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss.324, 334, 336 & 337---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement of Hudood and Tazeerat) Act (IX of 1974), S.25---Attempt to commit qatl-i-amd, Itlaf-i-Udw, Itlaf-i-Salahiyyat-i-Udw, Shajjah---Pre-arrest bail, refusal of---Allegation against accused was that she, upon petty differences with her husband, amputated his penis at midnight---Counsel for accused, pleaded that accused was entitled to pre-arrest bail on medical ground that she was suffering from 'Schizophrenia/Psychiatrist disease'---Medical report of accused prior to the occurrence, indicated that accused and complainant, had some conflicts on account of trivial matters---Prima facie, probability of commission of alleged offence by accused could not be ruled out---Accused, could be granted bail on ground of ailment, if the matter of illness was such that it could be detrimental to his/her life; that it was not possible to give treatment to accused in prison---Resident Psychiatry reviewed the accused and reported about her to be "stable; manageable; no fresh complaint; and eating and sleeping well"---Accused did not seek pre-arrest bail on medical ground from the court below and plea of insanity taken before Shariat Court, seemed to be an afterthought---Argument of counsel for accused regarding sickness of accused, being misconceived, was repelled, in circumstances---Accused slipped away from the court below at the time of announcing the impugned order; she, even did not appear in person before Shariat Court (AJ&K) at the time of arguments and remained seated in vehicle on the pretext of ailment---Shariat Court (AJ&K) observed that in such like cases, where accused did not appear before the court, the prayer of pre-arrest bail, was refused--- Accused, who was prima facie, connected with the commission of alleged offence, was not entitled to concession of pre-arrest bail---Court below did not commit any illegality, while declining confirmation of pre-arrest bail to accused, who ought to be arrested for investigation---Petition was dismissed, in circumstances.

Hanif v. The State 1983 PCr.LJ 1972; Muhammad Jaffar v. The State 1987 PCr.LJ 1338; Bashir Ahmad v. Muhammad Yunus 1990 PCr.LJ 1035; Miss Shahla Raza v. The State 1991 MLD 1814; Muhammad Hussain and others v. The State 1992 PCr.LJ 1683; Rafaqat Ali v. The State 1994 PCrLJ 379; Mehrban alias Munna v. The State PLD 2002 SC 92 and 2005 PC.LJ 186 distinguished.

Basharat Khan and 7 others v. Sher Muhammad Khan 2002 SCR 278; Abdul Majid v. The State 2003 MLD 194; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Imtiaz Jawed v. The State PLD 2008 522; Naseer Ahmad v. The State 2009 PCr.LJ 1430 and Abdul Kareem v. The State 1988 PCr.LJ 917 ref.

Ch. Abdus Salam Arif and Kamran Tariq for Petitioner.

Iftikhar Hussain Butt for the Complainant.

2017 P Cr. L J 1639

[Shariat Court (AJ&K)]

Before Mohammad Sheraz Kiani, J

ALTAF HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Revision Petition No. 42 of 2016, decided on 9th March, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1985, Ss.3, 4 & 26---Manufacture, owning or possessing intoxicant---Bail, refusal of---Three Kgs. charas and 100 grams of heroin were recovered from accused---Recovery memos were prepared by the Police in presence of witnesses---Large quantity of intoxicant was recovered from the possession of accused and there were reasonable grounds to believe that accused was prima facie involved in non-bailable offence which entailed maximum sentence of life imprisonment---Case against accused fell under prohibition contained in subsection (1) of S.497, Cr.P.C.---Bail could not be granted to accused in such like cases---Trial Court in declining bail to accused had exercised its discretion in a judicious manner, which did not warrant any interference by Shariat Court---Petition was dismissed, in circumstances.

Arshad Javed alias Bhola v. The State 1988 PCr.LJ 1267 rel.

Raja Mohammad Shafique for Petitioner.

2017 P Cr. L J 101

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MOHAMMAD RIAZ---Appellant

Versus

STATE through Advocate-General of Azad Jammu and Kashmir and another---Respondents

Criminal Appeal No. 6 of 2014, decided on 28th May, 2015.

(On appeal from the judgment of the Shariat Court dated 09.12.2013 in Criminal Appeals Nos. 1 and 5 of 2003 and Criminal Reference No.1 of 2003)

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

----Ss. 302, 304, 306 & 308---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd liable to qisas, possessing unlicensed arms---Appreciation of evidence---Delay of about 8 hours in lodging of FIR had plausibly been explained---According to the prosecution story the deceased received only firearm injury, whereas according to the post-mortem report there was also an injury appearing to have been caused by sharp-edged weapon on the face of deceased---Doctor had opined that such like injury could be caused due to falling on a sharp edged object---Contention that such a situation had made the case doubtful, had no substance---Post-mortem report was in consonance with the time of death of the deceased as narrated by the prosecution---Mere delay in conducting the post-mortem, was no ground for reduction of sentence, when there was no contradiction in the story established by the prosecution and the post-mortem report---All the prosecution witnesses being the inmates of the house, their presence at the place of occurrence appeared to be natural---All prosecution witnesses remained consistent regarding time, manner and place of occurrence---Despite lengthy cross-examination, the defence failed to shatter the confidence of the witnesses---Prosecution had succeeded to prove the case against accused beyond any shadow of doubt---Mere relationship could not be made a ground for discarding the evidence, when no ill-will or animosity against accused had been brought on record---Purgation, was also conducted by the Trial Court to adjudge the credibility of witnesses---Requirements of S.304, P.P.C., had been fulfilled by the Trial Court while awarding the sentence of death as qisas to accused---Accused had a criminal history as he remained involved in the murder of his former wife---Deceased wife of accused was pregnant at the time of occurrence and premature baby also died during the occurrence---Deceased wife was not survived by any Wali (legal heir)---No other direct descendent of the deceased was available---Prosecution having succeeded to prove the case against accused, law did not impose any embargo to award sentence of death as qisas to accused---Case against accused having been proved, death penalty could be awarded to accused as Tazir, if the requirements of qisas were not available---Case against accused having been proved beyond reasonable doubt, normal penalty of death, had rightly been awarded to accused, in circumstances.

Muhammad Feroze v. The State PLD 2003 Kar. 355; Niamat Ali v. The State 1998 PCr.LJ 1072; Muhammad Ilyas v. Kabir Hussain and another 2003 YLR 806; Karim Dad v. Javed and others Criminal Appeal No.25 of 2011, decided on 23.2.2015; Ghazanfar Ali v. The State Criminal Appeal No. 31 of 2011, decided on 13.4.2015; Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 855; Nasir Mahmood and another v. The State 2006 SCMR 204; Muhammad Akram v. The State 2003 SCMR 855 and Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 ref.

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

----Ss.302(b) & 304---Qatl-i-amd---"Qisas" and "Tazir"---Distinction---Only difference between 'qisas' and 'tazir' was that in case of qisas no discretion was left with the court, except to award the sentence of death; whereas in case of tazir, the discretion lay with the court to award the sentence of death or life imprisonment according to the circumstances of the case.

Mirza Abdul Aziz Ratalvi for Appellant.

Ch. Muhammad Ilyas for the Complainant.

Ch. M. Ashraf Ayaz, Additional Advocate-General for the State.

2017 P Cr. L J 169

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

EHSAN ULLAH---Appellant

Versus

MUHAMMAD FAROOQ and another---Respondents

Criminal Appeal No.43 of 2013, decided on 27th January, 2015.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 337 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah, common intention---Bail, recalling of---Deceased, a student in full bloom of his youth had been deprived of his right of life due to alleged incident---Deceased was traveling in a bus, for a small amount of fare, cleaner of the bus caused serious head injury to the deceased---Bus driver, despite knowledge that the deceased was injured, joined the cleaner of the bus in beating the injured mercilessly and thereafter threw him out of the bus in critical condition---Role attributed to accused was satisfactorily established---Such act of accused created panic, fear and insecurity in the general public, especially to the young students who were traveling in the bus---Irrespective of the fact, whether the injury attributed to accused resulted into death or not, conduct of accused, was also to be considered---Conduct of accused was very much unbecoming and inhuman, depriving him of any concession---Sufficient material was available for believing that accused was involved in commission of non-bailable offence---Order passed by the Shariat Court granting bail to accused, was not according to law---Case of accused did not fall within the ambit of further inquiry---Impugned judgment of the Shariat Court, was set aside and concession of bail extended to accused stood recalled, in circumstances.

Imam Bux v. The State PLD 1983 SC 35; Muhammad Arshad and 2 others v. State PLD 1996 SC 122; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Nadeem Akhter v. Muhammad Arshid 1994 SCMR 211 and Wali Muhammad v. The State 2000 PCr.LJ 145 ref.

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

----S. 497(2)--- Bail--- Further probe and inquiry--- Scope--- Some ambiguity in the prosecution story, or some chain of story be missing; or reasonable ground and circumstances appealing to a prudent mind that for connecting accused with the commission of alleged offence, some material was further required, must exist to bring the case within the ambit of further inquiry.

Khalid Rashid Chaudhry, Advocate for Appellant.

Muhammad Zubair Raja, Advocate for Respondent.

Mehmood Hussain Additional Advocate-General for the State.

2017 P Cr. L J 185

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

ZAFFAR HUSSAIN MALIK---Appellant

Versus

ABDUL SALAM and others---Respondents

Criminal Appeal No. 18 of 2013, decided on 22nd April, 2015.

(On appeal from the Judgment of the Shariat Court dated 8.11.2013 in Criminal Appeals Nos. 57 and 58 of 2011)

(a) 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---No eye-witness of the occurrence was on record and the case was based upon the circumstantial evidence---Occurrence took place in the midnight and source of light was not recovered---Ocular story as narrated by star witness seemed to be doubtful---Place of occurrence was a deserted area and it was not possible in the mid night to identify persons who ran away after committing the offence---Statement of prosecution witnesses could not be relied upon---Complainant was not the witness of the occurrence and whole story narrated by him was hearsay---Recovery of .30-bore pistol with magazine having not been effected on the pointation of accused, such recovery would create a serious doubt---Even otherwise, the recovery effected in the case could not play any decisive role where ocular account was disbelieved and the investigation was suspected one---Prosecution had failed to make out unbroken link of chain, which was pre-requisite in the case of circumstantial evidence---Dispute existed between the parties, possibility of false implication, could not be ruled out---Until an acquittal order was found perverse, arbitrary and forceful, same could not be interfered with---Accused, after acquittal would enjoy double presumption of innocence; one before the trial and the other after the acquittal---For setting aside an acquittal, there must be some perversity, departure from law, arbitrariness, misreading or non-reading of evidence apparent on the face of record---Once accused was acquitted by the court of competent jurisdiction, for setting aside the same, there must be some extra-ordinary compelling reasons---Prosecution having failed to prove the case beyond reasonable doubt, story narrated by prosecution being highly doubtful, benefit of such doubt, must go to accused---In absence of any perversity in the impugned judgment of the Shariat Court, appeal against acquittal stood dismissed, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Afzal v. Mst. Riaz Begum and 2 others 2004 SCR 140 and Musarrat Begum v. Muhammad Abbass and another 2014 SCR 318 ref.

(b) Criminal trial---

----Related witness---Testimony of related witnesses, could not be discarded, merely on the basis of relationship, however, testimony of inimical witness, had to be looked with great care and caution.

Ghulam Rasool and another v. The State and another 2012 PCr.LJ 452 and Masood Hussain and 2 others v. Ghazanfar Ali and 3 others 2005 YLR 2203 rel.

(c) Criminal trial---

----Circumstantial evidence---Scope---Pieces of evidence, should have the unbroken chain of the events; all the links in the chain should be fully connected and interlinked---If any link of the chain was missing, the whole case would fall on the ground---In a case resting upon the circumstantial evidence; no link in the chain was to be missing and all the circumstances, must lead to the guilt of accused---If a single link of the chain was missing the evidence could not be relied upon---Every link in such a case was to be proved by cogent evidence, otherwise, no conviction could be awarded or maintained---Accused, in case of circumstantial evidence could not be held guilty until same was proved or was incompatible with the innocence or incapable of explanation upon any reasonable hypothesis than that of his guilt.

The State v. Mst. Falawat Jan and another 1992 SCR 366 and State through Advocate-General Azad Jammu and Kashmir Muzaffarabad v. Talib hussain and 2 others 2013 SCR 192 ref.

Mushtaq Ahmed Janjua for Appellant.

Muhammad Noorullah Qureshi for Respondents.

Mansoor Pervaiz Khan, Advocate-General for the State.

2017 P Cr. L J 255

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

CRIMINAL APPEAL NO. 8 OF 2011

NASIR MEHMOOD---Appellant

Versus

The STATE---Respondent

CRIMINAL APPEAL NO. 12 OF 2011

MOHAMMAD ZAHIR KHAN and 2 others---Appellants

Versus

NASIR MAHMOOD KHAN and another---Respondents

Criminal Appeals Nos.8 and 12 of 2011, decided on 6th April, 2015.

(On appeal from the order/judgment of the Shariat Court dated 31.12.2010 in Criminal Appeal No. 39 and Murder Reference No. 37 of 2004)

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

----S. 465---Unsoundness of mind and incapability of accused to defend his case---Determination---Court of Session and the High Court were vested with power to determine the fact of unsoundness of mind and incapability of accused to defend his case---If from record or attending circumstances, it would appear to the court that accused, who was brought before the court was of unsound mind and incapable of making his defence; then it was incumbent upon the court to adopt the procedure laid down in law and conduct an enquiry into the unsoundness of mind of accused---Provisions of S.465, Cr.P.C., were mandatory in nature; omission to observe the provisions thereof, would vitiate the conclusion and the result reached thereon---Possibility could not be ruled out where accused could feign to be insane---Section 465, Cr.P.C., conferred the power upon the court for determining the fact that accused was of unsound mind---Question of unsoundness of mind of accused, was to be decided by the court from the attending circumstances, attitude, behaviour of accused, on the medical record, if any; if from the attending circumstances accused appeared to the court to be of unsound mind and consequently incapable of making his defence, the court in the first instance, would try such fact of unsoundness of mind and incapability to defend the case and after determination of such fact would proceed in the matter.

Jawad Ayub's case 2011 SCR 263; Shakeel-ur-Rehman v. the State PLD 1982 Sh.C. (AJ&K) 104; Said Rasool v. Muhammad Fazil and another 1990 PCr.LJ 210; Sirajuddin v. Afzal Khan and another PLD 1997 SC 847 and Shivaswamy v. The State of Mysore AIR 1971 SC 1638 ref.

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

----S. 465---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(ii)---Pakistan Arms Ordinance (XX of 1965), S. 13---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), Ss.25 & 30---Qatl-i-amd, attempt to commit qatl-i-amd, causing badiah, possessing unlicensed arms---Appreciation of evidence---Unsoundness of accused, determination of---Father of accused filed application that his son/accused being unsound mind, an enquiry be conducted under S.465, Cr.P.C., in respect of state of mind of accused, but that application was rejected---Accused having not engaged any counsel, Trial Court while acting under provisions of S.30 of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, appointed counsel for accused as an amicus curiae and fixed case for recording the evidence---Said Counsel, declined to defend accused because accused had refused to talk to him---Refusal of accused to talk to said counsel itself was sufficient to prove that accused was of unsound mind and incapable to defend his case---Superintendent Jail also addressed a letter to Trial Court, requesting for sending accused from jail to District Headquarter Hospital for medical check up---Trial Court, while dismissing application of father of accused had not considered the medical record appended with said application, showing that accused remained under treatment of psychiatrist---Person who was facing trial in the offence of murder, wherein he could be sent to gallows, was not ready to engage a counsel and to disclose information or talk to counsel appointed for him, could not be said that he could understand the other things---Court was to determine as to whether accused appeared to be of unsound mind and was capable to defend himself---Court would form the opinion not subjectively, but keeping in view all the attending circumstances including medical reports---Psychiatrist after examining accused reported in positive that accused suffered from major depression---Trial Court should have passed the order for proceedings under S.465, Cr.P.C.---Order passed by the Trial Court whereby, application for proceeding under S.465, Cr.P.C., was rejected, was not maintainable.

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

----S. 465---Penal Code (XLV of 1860), Ss. 302, 324 & 337-F(ii)---Pakistan Arms Ordinance (XX of 1965), S.13---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), Ss.25 & 30---Filing appeal by accused through his mother (next friend)---Competency---Unsoundness of mind and incapability of accused to defend case---Determination---Appeal on behalf of accused had been filed through his mother---Accused being of unsound mind and unable to defend himself, appeal filed on behalf of accused through the next friend/mother was maintainable---Trial Court to which case had been remanded in the first instance would decide the application filed by the father of accused for determination of unsoundness of the mind and incapability of accused to defend his case; if the Trial Court would come to the conclusion that accused was of sound mind and capable to defend himself, then it would summon the witnesses and provide an opportunity to accused for cross-examining the witnesses; if after trying the fact of unsoundness of mind and incapability to defend the case, court would draw conclusion that accused was of unsound mind and incapable to defend his case, then all the proceedings in trial conducted by the Trial Court would be deemed to have been quashed and court would postpone the trial till accused was declared of sound mind and capable to defend his case.

Shivaswamy v. The State of Mysore AIR 1971 SC 1638 ref.

Raja Niaz Ahmed Khan, Advocate for Appellant (in Criminal Appeal No. 8 of 2011).

Mehmood Hussain Chaudhary, Additional Advocate-General for the State (in Criminal Appeal No. 8 of 2011).

Khalid Rasheed Chaudhary, Advocate for Appellants (in Criminal Appeal No. 12 of 2011).

Mehmood Hussain Chaudhary, Additional Advocate-General for the State (in Criminal Appeal No. 12 of 2011).

Raja Niaz Ahmed Khan, Advocate for the Respondents (in Criminal Appeal No. 12 of 2011).

2017 P Cr. L J 355

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD IKHLAS---Petitioner

Versus

EHTESAB BUREAU AZAD JAMMU AND KASHMIR through Chairman and 3 others---Respondents

Criminal Misc. No. 9 of 2015, decided on 26th May, 2015.

(Application under Order XLII, Rule 5 of Azad Jammu and Kashmir Supreme Court Rules, 1978)

Penal Code (XLV of 1860)---

----Ss. 409, 419, 420, 467, 468 & 471---Azad Jammu and Kashmir Prevention of Corruption Act, 1950, S.5(2)---Azad Jammu and Kashmir Ehtesab Act, 2001, S.11---Official Misdemeanors Act, 1948, S.40---Public Office Misconduct Ordinance, 1965, Ss.6 & 15---Criminal Procedure Code (V of 1898), S.35---Azad Jammu and Kashmir Supreme Court Rules, 1978, R.5---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for purpose of cheating, using as genuine a forged document, taking illegal gratification, corruption and corrupt practices, embezzlement etc.---Sentence in cases of conviction of several offences at one trial---Concurrent running of punishments---Scope---Accused was convicted for commission of eleven offences under different laws, and was awarded three years' rigorous imprisonment for each of the offences (total 33 years) by the Trial Court and one year's additional punishment for non-payment of fine---Accused was extended benefit of S.382-B, Cr.P.C.---Absence of any direction of the Trial Court as to whether the punishment awarded to accused, had to run consecutively or concurrently---Effect---Accused had moved application for his release on the ground that he having undergone the whole imprisonment of 4 years, was entitled to be released---Validity---Trial Court, in the conviction order, had not issued any direction as to whether the awarded punishments would run consecutively or concurrently---Provision of proviso (a) of S.35 of the Cr.P.C., had provided that in no case, a person would be sentenced to imprisonment longer than the period of 14 years---In the present case, aggregate punishment awarded to accused in eleven cases, had come to 33 years; if it was deemed as consecutive, it was not allowed in view of proviso (1) of S.35 of the Cr.P.C.---If it was deemed that intention of the court was consecutive running of the punishment, it would amount to violation of proviso (a) of S.35, Cr.P.C.---Judgments, could not be implemented in a manner, which would violate the statutory provisions---Running of the punishments concurrently; was the only remedy for avoiding the violation of S. 35, proviso (a), Cr.P.C.---Supreme Court observed that if under law the accused had served out the concurrent punishment, he should be released after calculation of the period of sentence and accused should approach the Trial Court and not the Supreme Court by a miscellaneous application---Application was consigned to record, in circumstances.

Shah Hussain v. State PLD 2009 SC 460 ref.

Kh. Attaullah Chak, Advocate for the Petitioner.

Mir Khalid Mehmood, Chief Prosecutor and Zafar Iqbal Azad, Deputy Chief Prosecutor for Respondents.

2017 P Cr. L J 649

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

GHAZANFAR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 31 and 32 of 2011, decided on 13th April, 2015.

(On appeal from the judgment of the Shariat Court dated 26.5.2011 in Criminal Appeals Nos. 12 and 26 and Criminal Reference No.10 of 2007)

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

----S. 154--- First Information Report--- Object---FIR was not a substantive piece of evidence and object of FIR was only to bring the law into motion.

Karim Dad v. Javed and others (Criminal Appeal No. 25 of 2011 decided on 23-2-2005) ref.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, possessing unlicensed arms---Appreciation of evidence---Eye-witnesses though were chance witnesses, but merely on the ground that witnesses were chance witnesses, case of the prosecution could not be smashed out, especially, when prosecution had succeeded to prove presence of said witnesses---Said eye-witnesses remained consistent on the material points and made their statements in line with each other---All said witnesses proved their presence at the relevant time satisfactorily and they belonging to the same vicinity, were known to the accused--- Question of false implication of accused would not arise---No material discrepancies had been brought into the notice of the court---Discrepancies, which counsel had pointed out were insignificant and had no substance to discard the statement of the eye-witnesses---No other motive, except the one which had been set up by the prosecution, had come on the record---Defence had failed to bring anything on record to the effect that witnesses were inimical towards accused---All the witnesses were independent and trustworthy---Trial Court as well as the Shariat Court, had appreciated evidence according to the settled norms of justice---Mere relationship, was no ground for discarding the evidence of a witness---Both courts below while evaluating the evidence with great care and caution, had rightly come to the conclusion that case against accused had been proved---Normal penalty of death was to be awarded to accused.

Hakam Deen v. The State and 15 others PLD 2006 SC(AJ&K) 43; Hassan and others v. The State and others PLD 2013 SC 793; Anees-ur-Rehman and another v. The State PLD 2002 Lah. 110; Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and 2 others PLD 2004 Lah. 717; Zahid Hussain v. The State 1999 PCr.LJ 1044; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Muhammad Ramzan v. The State 1997 PCr.LJ 376 and Misri v. State 1999 PCr.LJ 116 ref.

Irfan Hussain v. Allah Din and others 2014 PCr.LJ 312; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 rel.

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

----Ss. 302(a) & 304---Qanun-e-Shahadat (10 of 1984), Art.17---"Qisas" and "Tazir"---Distinction---Difference between 'qisas' and 'tazir' was that in case of qisas the court had no discretion in the matter of sentence, whereas, in case of tazir the discretion lay with the court to award sentence of death or life imprisonment---For awarding the sentence of qisas, the requirements of S.304, P.P.C., were required to be fulfilled---Pre-requisites for punishment of qisas, were the proofs as provided in S.304, P.P.C., itself with reference to either accused made confession before the court, or as required under Art.17 of Qanun-e-Shahadat, 1984---Where proof of qatl-i-amd, liable to qisas as required under S.304, P.P.C., was not available, accused was liable to be convicted and sentenced under S.302(b), P.P.C.---Tazkiya of witnesses was an obligation on the court for ascertaining their competency and righteousness which had been fulfilled---Counsel for accused, had not raised any serious objection regarding the purgation---Court could safely award punishment of qisas in circumstances---Counsel for accused failed to point out any mitigation for lesser sentence---Sentence of death as qisas, could only be converted into life imprisonment as tazir where requirement of S.304, P.P.C., had not been fulfilled, whereas in the present case no such situation had arisen--- Death sentence as qisas was maintained.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, possessing unlicensed arms---Appeal against acquittal---Reappraisal of evidence---Courts below, had rightly extended the benefit of doubt to co-accused---Both courts below while passing the acquittal order had assigned the strong reasons---Judgment of acquittal could only be interfered if the appellate court would come to the conclusion that same was capricious, fanciful, perverse and arbitrary, or had been passed against the settled norms of administration of justice---No such element having been found in the judgment passed by both the courts below, no interference was warranted, in circumstances---Appeal against acquittal was dismissed, in circumstances.

Ali Muhammad v. Muhammad Akram and another 2014 SCR 351 rel.

Raja Inamaullah Khan, Advocate for Appellant (in Criminal Appeal No. 31 of 2011).

Abdul Majeed Malick, Advocate for the Complainant (in Criminal Appeal No. 31 of 2011).

Mehmood Ahmed, Additional Advocate-General for the State (in Criminal Appeals Nos. 31 and 32 of 2011).

Abdul Majeed Malick, Advocate for the Appellant (in Criminal Appeal No. 32 of 2011).

Raja Inamullah Khan, Advocate for Respondents (in Criminal Appeal No. 32 of 2011).

2017 P Cr. L J 731

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

SAID AKBAR and another---Appellants

Versus

Sardar GHULAM HUSSAIN KHAN through Legal Heirs and another---Respondents

Criminal Appeal No. 16 of 2013, decided on 28th May, 2015.

(On appeal from the judgment of the Shariat Court dated 25.09.2013 in Criminal Appeal No.48 of 2009)

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

----Ss. 324, 337-A(i), 337-F(i), 148, 149 & 506---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd, causing Shajjah-i-Khafifah, Damiyah, rioting, common object, criminal intimidation, possessing unlicensed arms---Appreciation of evidence---FIR was lodged after one hour of the occurrence---Medical report corroborated injuries inflicted on the complainant party as narrated in the FIR---No major contradiction, was found in the statement of the witnesses---Evidence of the eye-witnesses, could not be brushed aside, until some gross contradictions would come on record---Discrepancies pointed out in the case, were minor in nature, which could be ignored---Witnesses, had not been cross-examined by the defence side, even no question regarding the place, manner and time of occurrence had been put to the witnesses---If a portion of a statement was not challenged in cross-examination same would be deemed to be admitted---Manner, place and time of occurrence, were not denied---Occurrence having taken place in a house, presence of the witnesses seemed to be natural---Defence, failed to bring any piece of evidence to the effect that the presence of the eye-witnesses at the time of occurrence, was doubtful---Witness who had got recorded his statement in a natural manner, though had not seen the occurrence, but he supported the prosecution version regarding the place, time, manner of occurrence and presence of the parties at the relevant time---Recovery of pistol, appeared to be doubtful as same had been effected five days after the arrest of accused---No explanation had been offered regarding the non-recovery of empties/cartridges---Report of Forensic Science Laboratory, was also available on record---Much reliance could not be placed on the recovery in such a situation---Ocular account furnished by the prosecution, being reliable and no material contradictions, having come on record, recovery which was one of the corroborative pieces of evidence, had become immaterial---Contention, that stone with which injury was inflicted by accused to the injured having not been recovered, and that had made the case doubtful, was repelled as stone could be easily managed and non-recovery of stone, had shown that no improvement or padding had been made by the prosecution---Shariat Court had not committed any illegality while appreciating the evidence---Prosecution having proved the case beyond reasonable doubt, Shariat Court was justified to set aside the acquittal order passed by the First Appellate Court and maintained the conviction recorded by the Trial Court---Appeal was dismissed and order through which operation of the impugned conviction order was suspended and accused were enlarged on bail was recalled---Accused persons would be taken into custody and remanded to jail for serving remaining portion of the sentences.

Muhammad Aslam v. State 1999 SCMR 172; Jan Alam v. The State and others 2004 PCr.LJ 68; Muhammad Riaz and others v. The State 2008 PCr.LJ 318; Nazir Ahmed v. The State and others 2002 PCr.LJ 149; Ishtiaq Ahmed and others v. The State and others 2012 YLR 2587; Muhammad Tahir Aziz v. The State and another 2009 SCR 71 and Muhammad Shabir v. Ch. Muhammad Rashid and others Criminal Appeal No. 14 of 2013, decided on 20.2.2014 ref.

Muhammad Tahir Aziz v. The State 2009 SCR 71 rel.

(b) Criminal trial---

----Discretion of prosecution to examine witness of its own choice---Discretion lay with the prosecution to examine the witnesses of its own choice and prosecution could not be compelled to examine each and every witness cited in the calendar of witnesses---Witnesses who had been forgiven, or not examined, were not the material witnesses.

Karamat Hussain v. The State (Criminal Appeal No.10 of 2012 decided on 16.05.2015) ref.

(c) Criminal trial---

----Testimony of relative witness---Mere relationship, could not be made a ground to discard the testimony of the witness, until some ill-will or animosity of the witness would come on record.

Ghazanfar Ali v. The State and others (Criminal Appeal No.31 of 2011 decided on 13.04.2015) ref.

Sardar Karam Dad Khan, Advocate for Appellants.

Barrister Hamayun Nawaz Khan, Advocate for the Complainant.

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

2017 P Cr. L J 1310

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

ZAFFAR IQBAL and another---Petitioners

Versus

KHAWAR ABBAS and another---Respondents

Criminal Revision Petition No. 2 of 2016, decided on 30th March, 2017.

(On revision from the order of the Shariat Court dated 11.12.2015 in Cr. Revision Petition No. 55 of 2014)

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 439--- Penal Code (XLV of 1860), Ss.302, 324, 337-F(ii)(v)(vi), 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing badiah, hashimah, munaqqilah, jaifah, common intention---Bail, recalling of---Scope---Recalling of bail granted to accused after a period of almost three years, would not bring any fruitful purpose, rather disposal of the case on merits was necessary for the ends of justice---Merely on the ground of ill-drafting of the judgment, the concession of bail could not be recalled, which otherwise in view of the peculiar facts and circumstances of the case appeared to be justified---Enlargement of accused on bail did not appear to be violative of the principles of administration of justice; or of without sufficient ground---Once the bail was granted by a competent court, for recalling the same extraordinary ground, like violation of the statutory provisions, arbitrariness etc., were required, whereas in the present case no such grounds were available---Evidence of most important witness had been recorded while some of the remaining witnesses were of mere formal nature---Trial Court was directed by the Supreme Court to make serious efforts, and parties were also directed to co-operate with the courts and conclude the case while producing the witnesses within 4 months' time.

Muhammad Sultan v. The State 1999 PCr.LJ 1218 and Muhammad Bakhsh v. State and another 1999 PCr.LJ 667 ref.

Raja Inamullah, Advocate for Petitioners.

Mehmood Hussain Chaudhary, Additional Advocate-General for the State.

Raja Mazhar Iqbal, Advocate for the Accused.

2017 P Cr. L J 1383

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KHALID MEHMOOD and another---Petitioners

Versus

The STATE through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and another---Respondents

Criminal Revision No. 14 of 2014, decided on 22nd April, 2015.

(Revision petition from the judgment of the Shariat Court dated 24.9.2014 in Revision Petitions Nos. 207 and 211 of 2014)

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

----S. 497---Bail, grant of---Principles---Only a cursory view of the evidence had to be taken at bail stage---Deeper appreciation of evidence was not permissible, however, bail application could not be decided in vacuum---Record made available i.e. the FIR, the statements of the prosecution witnesses recorded under S.161, Cr.P.C., Medico-legal Report and the version of accused; if any had to be considered for the purpose.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 34, 337, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, causing Shajjah, rioting, common intention---Bail, refusal of---"Lalkara"---Scope---Prosecution witnesses who were injured in the occurrence had fully implicated accused persons with the offence---Statements of said injured persons, could not be brushed aside ordinarily---Accused not only raised lalkara for doing away the lives of the complainant party, but also caught hold of deceased and facilitated co-accused to do away the deceased---True import of lalkara, had to be judged after recording the evidence; but at bail stage, lalkara had to be looked in the light of total circumstances of the case---If accused was attributed mere lalkara; then too, it had to be looked as to what was the effect of mere lalkara---If a person, who was attributed mere lalkara, had an influence upon other co-accused, who being under his influence was bound to accept that, then mere lalkara, was sufficient for refusal of bail, but where there was no such situation, accused who was attributed lalkara had no influence over other co-accused, he could not be refused bail on the basis of lalkara---Where accused apart from raising lalkara was attributed some other overt act, then such person was not entitled for concession of bail---In the present case, it was not mere proverbial lalkara, but accused had caught hold of the deceased and facilitated co-accused to stab the deceased, who died due to that injury---Accused, in circumstances, was not entitled for concession of bail---No illegality was in the judgment passed by the Trial Court as well as the Shariat Court---Co-accused, was attributed fatal dagger blow to the deceased due to which he died---Case of co-accused did not fall within the ambit of further inquiry---Prima facie co-accused was connected with the crime---Supreme Court, ordinarily, did not intervene in the discretion exercised by the Trial Court and Shariat Court, unless it was found capricious, arbitrary and against the principles governing the bail matters---Trial Court and Shariat Court, had rightly refused bail to accused persons--- No illegality having been found in the judgment passed by the Shariat Court, petition was dismissed, in circumstances.

The State v. Matloob Hussain Shah 1983 PCr.LJ 745; Muhammad Ameen and another v. Muhammad Yaseen and another 2004 SCR 369 and State through Advocate-General, Circuit Mirpur, AJ&K v. Muhammad Younas and 3 others 2013 SCR 92 ref.

Kh. Muhammad Nasim, Advocate for Petitioners.

Ch. Shoukat Aziz, Additional Advocate-General and Manzoor Hussain Raja, Advocate for Respondents.