PCRLJ 2018 Judgments

2018 P Cr. L J 936

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa, Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

STATE through Advocate-General, Punjab---Appellant

Versus

HABIB---Respondent

Criminal Appeal No. 111-L of 1997, decided on 7th March, 2018.

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

----S. 302--- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18---Criminal Procedure Code (V of 1898), S.417(1)---Qatl-i-amd, zina or zina-bil-jabr liable to Tazir---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Mother of the deceased, who was an important eye-witness, had been given up---Medical account revealed that rape had not been committed with the deceased---No evidence was on record to establish attempt to commit zina with the deceased by accused---Doctor, had stated that he did not observe any mark of violence or dragging on the person of the deceased as there was no mud staining on the dead body---Allegedly, accused was chased by three persons, including real parents of the deceased, but could not succeed to catch hold of him from a nearly distance, on seeing the act of slaughtering their minor daughter---No sign of attempt to commit the offence of rape with the minor deceased, was found visible---Story of chase, was correctly disbelieved by the Trial Court---Recovery of incriminating weapon i.e. sickle, was rightly disbelieved by two courts below as same was recovered from a thickly populated area, but inhabitants of the locality did not participate in the alleged recovery and it was recovered after inordinate delay of arrest of accused---Parcel of said sickle, was sent to chemical examiner without explaining the delay of five days and the report of Serologist was found missing---Victim, did not sustain any irregular wound, nor any mark of violence or dragging was found on the body of the victim---Story, as set up by the prosecution, appeared to be concocted and could not be considered trustworthy due to contradictions and inconsistencies in between the ocular, medical and circumstantial evidence---Trial Court, had correctly extended benefit of doubt in favour of accused and acquitting the accused---Appeal against acquittal, was incompetent and misconceived as judgment of acquittal, appeared to be well reasoned, elaborate, which did not warrant any interference by Federal Shariat Court.

PLD 1970 SC 177 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---If a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, he would be entitled to such benefit, not as a matter of grace, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Ilyas v. The State 1997 SCMR 25 and Ghulam Qadir v. State 2008 SCMR 1221 rel.

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

----S. 417---Appeal against acquittal---Scope of interference in appeal against acquittal, was the most narrow and limited, because after acquittal, accused would be presumed to be innocent---Presumption of innocence, was doubled, more particularly, when impugned judgment, did not show mis-reading or non-reading of evidence, resulted into the miscarriage of justice---Appellate court, could not frequently interfere with acquittal, merely because of reappraisal of evidence, it would conclude different from that of the court acquitting accused---Law required that a judgment of acquittal, would not be disturbed, even though second opinion, could be reasonably possible---While reappraising evidence, court had to keep in mind the settled parameters for interference in the judgment of acquittal; substitutions of opinion, was not permissible, until and unless conclusion was perverse or arbitrary---If two views were possible, view in favour of accused, had to be given preference.

PLD 2010 SC 632; 2002 SCMR 261; 2013 PCr.LJ 374; 2011 PCr.LJ 856; PLD 1994 SC 31; 2010 SCMR 1592 and 2017 SCMR 633 ref.

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

----Ss. 417 & 492---Appeal against acquittal filed by Advocate General---Competency of---"Public Prosecutor"---Scope---Advocate General, was not a "Public Prosecutor" within the meaning of S.492, Cr.P.C. and appeal against acquittal by Advocate General on behalf of the State, was incompetent---Statutory provision of S. 417, Cr.P.C., was fully applicable, which clearly manifested that for the purpose of filing appeal against acquittal, the Government, could only appoint the Public Prosecutor and the Advocate General was not "Public Prosecutor" within the meaning of S. 417(1), Cr.P.C.

The State through Advocate-General Sindh v. Hanif Ahmed and others 1994 SCMR 749 and Mst. Aziz Fatima through Advocate-General and others v. The State 1997 PCr.LJ 618 rel.

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

Anees Muhammad Shahzad for Respondent.

2018 P Cr. L J 1185

[Federal Shariat Court]

Before Sh. Najam ul Hasan, C.J., Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD NAZIR and another---Petitioners

Versus

SUPERINTENDENT, CENTRAL JAIL, FAISALABAD and 2 others---Respondents

Criminal Misc. Application No. 02-L of 2018 in Criminal Appeal No.102-L of 2004 (Disposed of), decided on 31st May, 2018.

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

----Ss. 10, 11 & 20---Penal Code (XLV of 1860), S.57---Criminal Procedure Code (V of 1898), Ss.561-A, 57 & 35---Zina-bil-jabr, kidnapping, abducting or inducing woman to compel for marriage---Inherent powers of High Court, exercise of---Applicability and scope---Conviction of petitioners for two offences in same transaction---Petitioners were convicted and sentenced to life imprisonment for offence of abduction, and sentenced to death for jointly committing zina-bil-jabr with the victim---Sentences to run concurrently, application for---Petitioners/convicts had prayed that their death sentences having been converted to life imprisonment, be ordered to run concurrently with the sentence of life imprisonment separately awarded under S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Sentence of death, however, was converted into imprisonment for life by Federal Shariat Court---Petitioners filed application under S. 561-A, Cr.P.C., seeking direction to the Jail Authorities that both the sentences, should run concurrently, because in the judgment of the Federal Shariat Court, it was not specifically mentioned that after conversion of death sentence into life imprisonment, both the sentences of life imprisonment were to run consecutively---Section 35, Cr.P.C., provided that in one trial of two or more offences, aggregate sentence of imprisonment would not be more than 14 years---Sentences of life imprisonment could be directed to run concurrently, as under S.57, P.P.C., one sentence of life imprisonment would be reckoned as equivalent to imprisonment of 25 years---Powers of High Court under S. 561-A, Cr.P.C., would also apply 'mutatis mutandis' on the Federal Shariat Court in respect of the cases under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as provided under S.20 of the said Ordinance---Application was accepted all sentences, were ordered to run concurrently.

Shah Hussain v. The State PLD 2009 SC 460; Javed Sheikh v. The State 1985 SCMR 153; Rahid Ali v. The State 2018 SCMR 418; Muhammad Sharif v. The State 2014 SCMR 668; Faiz Ahmed and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Mst. Shahista Bibi and another v. Superintendent Central Jail Mach and 2 others PLD 2015 SC 15 and Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 ref.

Juma Khan and another v. The State 1986 SCMR 1573 and Khan Zaman and others v. The State 1987 SCMR 1387 rel.

(b) Mutatis mutandis---

----Meaning, explained.

Black's Law Dictionary (Eighth Edition) - 2004 and Oxford Advanced Learners' Dictionary (7th Edition) ref.

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

----S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 20---Zina-bil-Jabr---Powers of High Court under S. 561-A, Cr.P.C. would also apply mutatis mutandis on the Federal Shariat Court in respect of the cases under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as provided under S. 20 of the said Ordinance.

Shahid Azeem for Petitioners.

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

Complainant in person.

2018 P Cr. L J 1383

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

ALLAH DINA---Appellant

Versus

INAYATULLAH and 5 others---Respondents

Criminal Appeal No. 58-Q of 1999, decided on 28th March, 2018.

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

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Appeal against acquittal---Accused persons were charged for abducting the niece of complainant for the purpose of forcible marriage---Record showed that accused was not nominated amongst the culprits, in the FIR, who had abducted the niece of complainant, whereas the mother of the prosecutrix, who claimed to be eyewitness of the occurrence, nominated the accused to be along with co-accused who abducted her daughter---Mother of victim re-iterated that she got injured in the occurrence, but there was no medical certificate available on record regarding injuries sustained by her---Mother of alleged abductee had stated that Police Officer came to her house on 4th day and that her statement was neither recorded earlier nor till date, which fact inferred that she was not a prosecution witness as she had not got recorded her statement under S. 161, Cr.P.C.---Reliance upon her testimony was not safe to be relied---Record transpired that brother of abductee, who allegedly witnessed the occurrence had not been associated as prosecution witness, which further caused doubt in the prosecution case---Prosecution witness stated that while he was at home, he heard a vehicle being stopped outside his house and rushed outside, which suggested him to be first independent person to have seen the occurrence, but he did not say anything about abduction---Testimony of said witness was not helpful to the prosecution case rather created doubt---Prosecution had claimed that abductee had recorded her statement under S. 164, Cr.P.C., but she herself did not claim to have got recorded her such statement---Accused persons had been arrested earlier and were in custody at the time of alleged recording of statement under S. 164, Cr.P.C. of the abductee---Assistant Commissioner was duty bound to have had issued notice to the accused persons to afford them opportunity of cross-examination, upon abductee as required under S. 164(1-A), Cr.P.C.---No fair opportunity of cross-examination having been provided to the accused upon the alleged abductee, therefore, no explicit reliance could be placed upon such statement---Alleged abductee had stated that she was abducted by accused persons on the gun point and kept in the house of accused, where she was locked in a room and co-accused committed zina and in a police raid, after forty days, she was recovered from the house of accused and thereafter accused and co-accused were arrested---Abductee admitted that there were several houses nearby, where she was kept and that nobody came while she was being abducted and stated that there were several checkpoints on the way, but she did not make any hue and cry---Abductee had made dishonest improvements which had made her statement worthless, as she had not stated, in her earlier statement, that Kalashnikov were pointed at her, strangulated and was locked in a room---Statement of abductee seemed to be highly improbable, which did not appeal to prudent mind---Dishonest improvements made by alleged abductee had destroyed prosecution case---Medical evidence was also of no help to the prosecution and did not add anything incriminating as it did not lead to identify the culprit---Medical Officer had opined that hymen of the alleged abductee was not intact and there was no injury of any type on genital part or any other part of her body---Prosecution had failed to associate any neighbour as witness either at the place, wherefrom she was abducted or recovered, which further suggested that the story narrated by abductee was frivolous and concocted in nature, which by no stretch of imagination could be believed to be true and correct---Circumstances established that no illegality, perversity, misreading or non-reading of the evidence in the judgment impugned were found---Appeal against acquittal was dismissed in circumstances.

(b) Criminal trial---

----Appeal against acquittal---Absence of acquitted accused---Scope---Accused or respondent, in case of acquittal or conviction, if reluctant to surrender or appear, lost right of audience and appeal could be decided in his absence.

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

----S. 164---Confessional statement---Object---Statement under S. 164, Cr.P.C. was mainly recorded with the purpose, that in case the witness resiled from her/his statement recorded under S. 164, Cr.P.C., the witness could be confronted with earlier statement.

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

----S. 417--- Appeal against acquittal--- Interference--- Scope---Interference in acquittal for mere reason that another view of evidence was possible, was not permissible as after acquittal of accused, dual presumption of innocence was attached to such findings.

Sardar Ahmed Haleemi for Respondent No.1.

Yahya Baloch, DPG, Balochistan for the State.

2018 P Cr. L J 984

[Supreme Appellate Court, Gilgit-Baltistan]

Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J

SANAULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 18 of 2017 in Cr. P.L.A. No. 24 of 2017, decided on 26th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A, 341 & 34---Qatl-i-amd, causing Shajjah, wrongful restraint, common intention---Reappraisal of evidence---Accused was nominated in the promptly lodged FIR, with a specific role---Accused along with co-accused remained absconder which was a corroborative piece of evidence---Eye-witnesses, had directly charged the accused in committing the crime---Said eye-witnesses, remained consistent and corroborated each other---Mere relation of the witnesses with the deceased, was no ground to discard their testimony---Courts below, had rightly appreciated the evidence on record being confidence inspiring, while convicting accused---Counsel for accused, failed to point out any infirmity or illegality in the impugned judgment---No interference was required into the concurrent findings of the courts below---Petition for leave to appeal was converted into appeal and was dismissed.

Rai Muhammad Nawaz Kharal, Advocate along with Shakoor Khan, Advocate and Muhammad Abbas Khan, Advocate-on-Record for Petitioner.

Advocate-General Gilgit-Baltistan for the State.

2018 P Cr. L J 231

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umer, JJ

Syed HADI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman Sub-Office, Gilgit-Baltistan, Gilgit---Respondent

Writ Petition No. 116 of 2016, decided on 20th September, 2017.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail was an extra-ordinary relief given only in extra-ordinary circumstances---Circumstance when such relief could be given, enlisted.

Extraordinary concession can only be given where:-

(i) The accused is not nominated in the FIR or his name surfaced afterwards, that too in a remote manner.

(ii) Where the narration of the FIR is such, that benefit of doubt cannot be withheld.

(iii) Where the recipe of the offences is of such a nature that post arrest enlargement of accused on bail is evident even if the interim relief of pre-arrest bail is denied.

(iv) Where the supplementing material/evidence collected by the investigating agency is defective, feeble or laconic to such an extent that a prima facie link of the offender and the offence/offences cannot be established.

(v) Where ulterior/sinister, perverse and sordid motives could be inferred from the available material.

(vi) Where the FIR is lodged in a flagrant violation of the mandate given by the general or by a special law.

(vii) Where the FIR depicts only a civil liability Court should be extra cautious in dealing with such an FIR, since there are many offences like that of deception, fraud, forgery, misappropriation and cheque dishonor for which there exits remedies in both civil/criminal law, the remedy available in criminal law must not be denied on the strength of availability of adequate compensation in civil law since the same would make the penal provision redundant and extinct, and

(viii) Where the offence/offences is not of such nature affected public at large.

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

----S. 498--- Pre-arrest bail--- Scope--- Arrest was not statutory compulsion, provided accused remained co-operative.

2015 SCMR 1763 rel.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), S. 9---Corruption and corrupt practices---Recalling of pre-arrest bail---Allegations against accused was of making hundreds of illegal appointments---Accused was not co-operating with the investigation and the Reference was delayed---Accused remained absconder for a long time and co-accused were rotting in jail since long---Facility of pre-arrest bail granted to accused was re-called---Constitutional petition was disposed of accordingly.

2007 PCr.LJ 105; 2002 YLR 2764; 2007 PCr.LJ 1087; 2008 YLR 1087; 2008 YLR 2229; 2012 YLR 2809; 2013 MLD 1561; 2014 SCMR 1628; 2016 PCr.LJ 535; 2016 PCr.LJ 1498; 2007 YLR 541 and 2007 PCr.LJ 1116 ref.

Barrister Masroor Shah, Amjad Hussain and Muhammad Saleem for Petitioner.

Amin Khan, Prosecutor-General NAB for Respondent.

2018 P Cr. L J 389

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

CHACK MATAR---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No. 40 of 2017, decided on 3rd April, 2017.

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

----Ss. 497 & 59---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic drugs---Bail, refusal of---Section 51, Control of Narcotic Substances Act, 1997 was a clear bar to grant the bail to the accused booked under the Act---Contention of counsel that very arrest of the accused by the local police was illegal was devoid of any force as under S. 59, Cr.P.C. even a private person could arrest an accused who committed a non-bailable and cognizable offence---No doubt local police could register a case in case of recovery of narcotics but soon after registration of FIR the accused and recovered material must be handed over to Anti-Narcotics Force authorities for further proceedings otherwise the very object of Special Law would be made redundant---Accused was, prima facie, linked with the commission of offence---Bail was refused accordingly.

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

----Preamble---Intent and object of Act---Intent and object of Control of Narcotic Substances Act, 1997 was to control the production, processing and trafficking of narcotics.

Malik Kifayat-ur-Rehman for Petitioner.

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

2018 P Cr. L J 410

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

The STATE---Appellant

Versus

ZULFIQAR ALI alias KAMO and 3 others---Respondents

Criminal Appeal No. 26 of 2016, decided on 26th April, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-E, 109 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 345(2) & 265-K---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, abetment, common intention, causing explosion likely to endanger life or property, act of terrorism---Compromise---Application for acquittal---Parties during pendency of the case, effected compromise and the accused-respondents were acquitted from the charges on the basis of said compromise---Prosecution challenged the order of acquittal on the ground that compromise was defective as certain persons, who had no locus standi to effect compromise had appeared on behalf of legal heirs of the deceased and injured---Validity---Record showed that Trial Court accepted the statements of unauthorized persons for effecting compromise, which made the compromise defective---Said inherent defect in the compromise could not be cured by any means---Section 345(2), Cr.P.C. did not permit such a proxy on behalf of any victim---Appeal was accepted by the Chief Court by setting aside order of acquittal and remanded the matter with the direction to summon the legal heirs and injured, record their statements and pass appropriate order.

Dy. Advocate-General for the State.

Islamuddin for Respondent.

2018 P Cr. L J 433

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AKHTAR HUSSAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Misc. Nos. 140 and 142 of 2017, decided on 28th August, 2017.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 561-A---Qanun-e-Shahadat (10 of 1984), Art. 47---Inherent powers of the Chief Court---Evidence recorded in previous trial---Scope---Petitioner/accused along with the co-accused was charged for the murder of the deceased---Challan was submitted before the Trial Court and after full-fledged trial, petitioner was awarded life imprisonment and co-accused was awarded death sentence---Petitioner filed appeal, which was accepted on the ground that the petitioner was minor and his joint trial with co-accused was illegal and unwarranted under Juvenile Justice System Ordinance, 2000---Supreme Appellate Court in appeal upheld the judgment of Chief Court---Separate challan was filed against petitioner on the direction of the Trial Court---Charge was framed and case was fixed for prosecution evidence---Public Prosecutor made a statement that he did not want to re-examine the prosecution witnesses and stated that he would rely on the statements of prosecution witnesses already recorded---Matter was thereafter fixed for recording of statement of accused under S. 342, Cr.P.C.--- Petitioner filed application for re-examination of prosecution witnesses, which was dismissed---Petitioner moved another petition under S. 265-K, Cr.P.C., for acquittal from the charge mainly on the ground that after direction of de-novo trial by the Chief Court, the Public Prosecutor abandoned his right to re-examine the prosecution witnesses and no conviction could be based on previously recorded statements of prosecution witnesses, therefore, it had become a case of "no evidence"---Said petition was also dismissed by the Trial Court---Validity---Such statement by the Public Prosecutor regarding relying on the previous statements of the witnesses was a criminal negligence and was depreciated---Previous proceedings had been set aside by the Chief Court and the order was upheld by the Supreme Appellate Court---Trial Court had endorsed the illegal request of Public Prosecutor and turned down the application of accused for re-summoning the prosecution witnesses---Evidence recorded in previous trial could not be read as evidence in any subsequent proceedings under Art. 47, Qanun-e-Shahadat, 1984---Trial Court was directed to examine all the prosecution witnesses afresh---Circumstances established that no infirmity was found in the order for rejecting the prayer of accused persons for acquittal, which was upheld.

1972 PCr.LJ 734 and PLD 1997 Kar. 146 rel.

(b) Administration of justice---

----Matter to be decided on merits and not on technicalities.

(c) Act of court---

----Party not to suffer by an act of the court.

Munir Ahmed and Imtiaz Hussain for Petitioners.

Nemo for Respondent.

2018 P Cr. L J 456

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SAEED ULLAH and another---Petitioners

Versus

NIAZ MUHAMMAD and others---Respondents

Criminal Misc. No. 158 of 2016, decided on 9th October, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 561-A, 22-A & 22-B---Qanun-e-Shahadat (10 of 1984), Art. 27---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Petition under S. 561-A, Cr.P.C. for quashing of order---Inherent powers of Chief Court---Scope---One person died and one was severely injured in the incident---FIR was lodged against the accused party---One of the accused moved an application for the registration of counter FIR with the allegation that firing was opened by son of the deceased and by the injured on the command of deceased---Petitioner was medically examined by the Medical Officer and found fire arm injury on his arm---Police officer found the version of petitioner false and fabricated---Petitioner filed application under Ss. 22-A & 22-B, Cr.P.C., to the Ex-officio Justice of Peace which was allowed and SHO was directed to register FIR against the complainant party---Validity---During the proceedings under S. 157, Cr.P.C. and in the statements of prosecution witnesses recorded under S. 161, Cr.P.C., it had come on record that respondent was injured in the occurrence which was not denied by the either side---Medico-legal of the respondent was available on judicial file and factum of sustaining injuries by respondent were mentioned in the final report submitted in the Trial Court under S. 173, Cr.P.C.---Version of accused/respondent immediately after the occurrence was a relevant fact, within the meaning of Art. 27 of Qanun-e-Shahadat, 1984, which was on record---Legally, there was no bar to order registration of a second or even a third FIR, if facts of a particular case so demanded, but without commenting about the genuineness/otherwise of the allegations of the respondent against the petitioners, the registration of FIR would not be justified; however, the respondent would be at liberty to file a private complaint---Petition under S. 561-A, Cr.P.C. was allowed by setting aside the order passed by the Ex-officio Justice of Peace.

2005 MLD 1114; 2007 PCr.LJ 67 and PLD 2007 SC 539 ref.

Amjad Hussain and Muhammad Saleem Khan for Petitioners.

Jahanzeb Khan for Respondents Nos. 1 and 2.

Dy. Advocate-General for the State.

2018 P Cr. L J 881

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD NADEEM---Petitioner

Versus

The STATE through Incharge FIA PS No.14 Gilgit---Respondent

Criminal Misc. No. 67 of 2017, decided on 22nd May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Drugs Act (XXXI of 1976), Ss.23 & 27---Possessing of spurious drugs---Bail, grant of---Accused had been charged for violation of S.23 of the Drugs Act, 1976 which carried the punishment for not less than 5 years with fine---Punishment was not to be more than 10 years with fine of Rs.5,00000 (Five Lac)---While deciding bail application, the minimum sentence of the offence had to be kept in view in order to determine, whether the offence fell within the prohibitory clauses of S.497, Cr.P.C., or not---Section 23 of the Drugs Act, 1976 whereunder accused had been booked, had been restricted to the extent of export, import or manufacturing for sale or selling any spurious drug---Mere possession of a spurious drug had not been made punishable under S.27 of Drugs Act, 1976---Offence, accused was charged with, did not fall within the realm of provisions contained in subsection (1) of S.497, Cr.P.C.---Case for grant of bail having been made out, accused was admitted to bail, in circumstances.

Kamal Hussain for Petitioner.

Syed Dilda Hussain, AD Legal FIA Gilgit for Respondent.

2018 P Cr. L J 930

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Muhammad Umar, JJ

MUHAMMAD NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 15 of 2017, decided on 21st June, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 34 & 109---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 19(2)(10) & 21-L---Criminal Procedure Code (V of 1898), S.353---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, act of terrorism---Trial in absentia---Appreciation of evidence---Trial in absentia under S.19(10) of Anti-Terrorism Act, 1997, was a departure from the normal procedure of trial of a criminal case---Fair trial was an inherent right of an accused guaranteed by Constitution, as well as by Chapter-II of Gilgit-Baltistan Self-Governance and Empowerment Order, 2009; which had stipulated that trial in absentia of accused would be violation of his Fundament Rights---Accused, in the present case, was tried in absentia and no charge was framed against him---After arrest of accused, instead of sending him to judicial lock up, he was handed over to joint investigation team for further investigation---Challan against accused was submitted in the Anti-Terrorism Court and instead of framing the charge, Trial Court opted to decide application of accused under S.19(12) of Anti-Terrorism Act, 1997 and upheld the sentence awarded to him in absentia---Held, conviction of accused in the case, was handed down against him without following the mandatory provision of law and without affording an opportunity of hearing to accused---When after investigation challan was submitted before the Trial Court, the Trial Court was bound to frame the charge and afford a fair opportunity of defence to accused, which had not been done---Provisions of S.19(10) of the Anti-Terrorism Act, 1997, were a departure from general law and if the conviction had to be recorded in absentia, the Trial Court must adhere and observe the procedure provided therein in letter and spirit---In the present case, particulars of accused were recorded in a casual and lethargic manner, and it could not be said with exactitude that process of law was duly and properly sent on proper address of accused---Stance taken by accused that he was unaware of any proceedings against him, was to be accepted as correct---When there were two possibilities before the court, the one which favoured accused, should be adopted---Accused due to incomplete particulars and wrong address, remained unaware of any proceedings, which aspect of case had not been taken into consideration by the Trial Court and Trial Court dismissed application under S.19(12) in a hasty manner and without proper application of judicious mind---Prosecution had failed to connect accused with the commission of offence---Judgment of Trial Court was set aside and accused was directed to be released forthwith, in circumstances.

PLD 2006 Kar. 678; 2005 PCr.LJ 1889 and 2008 SCMR 2008 ref.

Jahanzeb Khan for Appellant.

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

2018 P Cr. L J 1013

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SAIF ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 69 of 2017, decided on 25th May, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 265-K---Penal Code (XLV of 1860), Ss.406, 417 & 468---Criminal breach of trust, cheating, forgery for purpose of cheating---Quashing of FIR---Jurisdiction of Chief Court---Jurisdiction under S. 561-A, Cr.P.C., was neither additional nor alternate---Provisions of S. 561-A, Cr.P.C., could be invoked by a party, where no alternate remedy was available---Said provision could not be used to divert the normal procedure meant for trial of criminal cases by the court of competent jurisdiction---Alternate remedy was available to accused under Ss.249-A & 265-K, Cr.P.C.---Chief Court in summary proceedings, could not assume the role of Investigating Agency and those powers could not be used to override an expression of law---Such powers could not be exercised by Chief Court when a matter could be dealt with by an ordinary court of criminal jurisdiction---Counsel for accused, could not convince Chief Court for filing of present petition under S.561-A, Cr.P.C., before the court without first availing the remedies available under Ss.249-A & 265-K, Cr.P.C.---Application under S. 561-A, Cr.P.C. was dismissed accordingly.

Raja Shakeel Ahmad for Petitioner.

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

2018 P Cr. L J 1505

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

RAJ WALI and 2 others---Petitioners

Versus

The STATE---Respondent

Cr. Rev. No. 11 of 2018, decided on 22nd May, 2018.

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

----S. 561-A---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers under S.561-A, Cr.P.C., being neither additional nor alternate, were to be rarely exercised there was no concept to divert the proceedings of an ordinary criminal court, where both the parties were provided level playing field to lead pro and contra evidence---When court would find that some injustice was being done with a person or a party, powers under S. 561-A, Cr.P.C., which were very wide in nature, could be exercised to prevent the abuse of process of court and law.

2013 MLD 250; 1998 PCr.LJ 1331 and PLD 1996 Lah. 145 ref.

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

----Ss. 365, 109 & 34---Criminal Procedure Code (V of 1898), S.561-A---Kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, common intention---Quashing of FIR---Contracting marriage by sui juris lady---Protection of said marriage---Law did not prohibit the petitioner from marrying sui juris lady nor prohibit them to live a matrimonial life as husband and wife after marriage---Said constitutional right of the petitioner, as enshrined in Chapter-II of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 could not be taken away---Aggrieved party could resort to Chief Court by invoking the writ jurisdiction under Art.71(2) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, if the challan had not been submitted in the court---Provisions of S.561-A, Cr.P.C., could be invoked after the submission of challan---Alleged abductee, whose age had been shown in Nikah Nama as 19 years, was a sui juris lady got recorded her statement before Civil Judge/Judicial Magistrate with regard to her Nikah with the petitioner with her consent and free will---Consent of adult and sane couple was sufficient for Nikah and consent of Wali was not required in Islam---Petitioner contracted marriage with alleged abductee and in the circumstances, no case against them was made out---Petitioners had two minor kids from their wedlock and continuance of any sort of proceeding against them would amount harassment---Application under S.561-A, Cr.P.C., was accepted and FIR was quashed, in circumstances.

Abdul Khaliq for Petitioners.

Dy. A.-G. for the State.

2018 P Cr. L J 1669

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

ARIF HUSSAIN DANISH---Appellant

Versus

The STATE---Respondent

Criminal Application No. 35 of 2017, decided on 25th June, 2018.

Penal Code (XLV 1860)---

----Ss. 324, 337-D & 427---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-H---Attempt to commit qatl-i-amd, causing jaifah, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Voluntary confession of guilt---Accused was charged for effective firing on the victim/injured person---Accused was caught red-handed along with weapon of offence by the Police Officials, while escaping from place of occurrence---Ocular account of the incident was furnished by two eyewitnesses including complainant and their names were also disclosed in the FIR---Statements of eyewitnesses of the occurrence were confidence inspiring and remained unshaken with regard to their presence at the place of occurrence---Statements of both the said witnesses were tested through lengthy cross-examination but they remained firm on all accounts and the defence failed to give any jolt or shake their evidence---Said witnesses had correctly narrated the date, time, place of occurrence and the manner in which the accused arrived at the place of occurrence and opened fire shots on the victim---Record showed that ocular testimony had fully been corroborated by medical evidence, wherein it had been opined that the victim had got gunshot wounds on the right arm and forearm---Accused had been caught hold by the witnesses/Police Officials while escaping from the place of occurrence and had recovered the weapon of offence, pistol .30-bore, from his possession---Said Police Officials/witnesses were impartial and independent and it was hard to believe that they would substitute the accused for the real culprits, who had committed the alleged offence---Admittedly, prosecution witnesses had no enmity of whatsoever nature against the accused and they had no reason to falsely involve the accused in the commission of alleged crime---Record transpired that accused had confessed his guilt before the Judicial Magistrate---Four empty shells had been taken into possession by the Investigating Officer---Police Officer had also recorded confessional statement of the accused under S. 21(h), Anti-Terrorism Act, 1997, wherein the accused had voluntarily confessed his guilt---Circumstances established that accused was responsible for opening effective fire at the victim and had rightly been convicted by the Trial Court---Appeal being devoid of merits was dismissed.

Muhammad Saleem for Appellant.

Deputy Advocate-General for the State.

2018 P Cr. L J 42

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

NASEER AHMED---Applicant

Versus

JUSTICE OF PEACE KOTLI and 4 others---Respondents

Criminal Miscellaneous Application No. 60 of 2017, decided on 28th October, 2017.

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

----Ss. 22-A & 561-A---Penal Code (XLV of 1860), Ss. 341 & 34---Wrongful restraint, common intention---Petition under S. 561-A, Cr.P.C. for quashing of FIR---Scope---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---Petitioner was charged in the FIR for restraining the respondent illegally, snatched the car on gun point---Petitioner contended that he was owner of the disputed car and the respondent had no proof that the car belonged to him; that alleged occurrence took place with someone else and that person was only competent to file application under S. 22-A, Cr.P.C., not the present respondent and that case was based on false and fabricated story and if the proceedings on the basis of impugned FIR was allowed to continue that would be an abuse of process of court of law---Validity---Contents of the FIR showed that cognizable offences under Ss. 341 & 34, P.P.C. were made out---Record showed that petitioner had admitted that in year 2014 he sold the questioned car to one "S"---After the said admission, if there was any outstanding amount against the purchaser, he could have claimed that amount through a civil suit---Petitioner had no authority to snatch the car without recourse to any legal forum---Registration of the case, in a cognizable offence, was the right of a citizen through which he sought his help and redressal from the State authorities---Said right had been protected with mandatory provision of S. 154, Cr.P.C.---SHO had no authority to refuse the registration of the case after having information of the alleged facts and occurrence---Circumstances suggested that police had made refusal due to some ulterior reasons and the Ex-officio Justice of Peace was quite justified and competent to issue direction under S. 22-A Cr.P.C. for the registration of case---No illegality had been committed, thus application was dismissed in limine.

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

----S. 154---Registration of FIR---If from any information, cognizable offence was made out, the officer incharge of police station was bound to register the FIR under S. 154, Cr.P.C. in the prescribed book---Police Officer could not delay or refuse to register the case---No discretion was available with the Police Officer, in such circumstances, to refuse the registration of case.

2003 YLR 1316; PLD 2003 Lah. 228 and 2005 YLR 152 rel.

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

----Ss. 154, 157(1)(b) & 157(2)--- Investigation/inquiry before registration of FIR---Scope---Police had no authority to enter into investigation under S. 157(1)(b), Cr.P.C. but that could be done only when there was sufficient ground for not investigating the case---Said power could be exercised in appropriate cases only after registration of the case---Powers vested by S. 157(2), Cr.P.C. could not override the mandatory requirements of S. 154, Cr.P.C.

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

----S. 561-A--- Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Disputed questions of facts and law required proper probe and could not be resolved by the High Court under S. 561-A, Cr.P.C.

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

----S. 561-A---Petition for quashing of FIR---Principles---FIR could be quashed if from the bare reading of the same, no cognizable offence was made out or the FIR had been registered without lawful authority and jurisdiction or civil liability was given the shape of criminal liability.

Allah Bakhsh and another v. The State and 3 others PLD 2013 Pesh. 117 rel.

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

----S. 561-A--- Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---High Court, while exercising powers under S. 561-A, Cr.P.C., had no role at investigation stage and had power to interfere under S. 561-A, Cr.P.C. for implementation of order of the Court and to secure the ends of justice---If the proceedings were pending before any court and it appeared that there was abuse of process of court, only then High Court could quash the proceedings.

2018 P Cr. L J 344

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Muhammad Sheraz Kiani, J

RIYASAT HUSSAIN and another---Appellants

Versus

MUHAMMAD SABIR and 3 others---Respondents

Criminal Appeal No. 66 of 2006, decided on 6th October, 2017.

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

----Art. 46---Recording of dying declaration by Investigating Officer---Admissibility---Principles---Police Officer who was investigating the case was not to be encouraged to record dying declaration; however, when the Medical Officer was not available, he could record the actual spoken words or gestures of the victim.

Imran Ashraf v. The State 2012 YLR 325 rel.

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

----Ss. 302, 337, 458, 109 & 34---Qatl-i-amd, Shajjah, house breaking by night after preparation for hurt, assault or wrongful restraint, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Deceased, then injured, lodged a complaint that he along with his wife were sleeping at the roof of his house that suddenly three unknown persons came there; one of them being of small height, was armed with .12-bore rifle, fired a straight shot, due to which, he sustained severe injury and fell down and later succumbed to injuries---Motive behind the occurrence was land dispute---Ocular account was furnished by the widow of the deceased complainant who was sole eyewitness of the occurrence---Record showed that widow of deceased got recorded her statement before police on 26.4.2001 and 7.11.2001 and before court, on 11.5.2005---Statement of the widow of deceased recorded before the police showed that she neither nominated any person nor deposed that accused persons had masked their faces with "chadars"---Said witness, however, subsequently made improvements in her statement recorded before police by deposing that three accused persons, who had masked their faces, were pulling her husband and during scuffle, two "chadars" of accused persons were dropped at the spot---Said witness (widow) made further improvement by deposing that accused fired at her husband and she had seen him while firing the shot---Dying declaration of the deceased complainant showed that out of three unknown accused persons, one was armed with .12-bore rifle, whereas record showed that police recovered two rifles from two accused persons---Record further showed that a double edged dagger was recovered from co-accused, whereas record of Trial Court showed that a common chhurri used for domestic work was recovered from the parcel---Investigating Officer had recorded the dying declaration of the victim and the Medical Officer only signed it, thus, such type of dying declaration could not be believed---Said circumstances created doubt in the prosecution case, benefit of which would resolve in favour of accused persons---Appeal against acquittal was dismissed in circumstances.

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

----Ss. 302, 337, 458, 109 & 34---Qatl-i-amd, Shajjah, house breaking by night after preparation for hurt, assault or wrongful restraint, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Recovery of crime weapons and other article from accused---Scope---Small butt of rifle, a dagger and a "chadar" were recovered from the place of occurrence---Two rifles from two accused persons were recovered---Said recoveries were doubtful as deceased had indicated in dying declaration about one rifle, whereas police recovered two rifles and one "chadar"---Widow of the deceased had deposed that two "chadars" of accused persons were dropped at the spot---Record revealed that recovery witnesses were closely related to deceased and despite availability of independent witnesses, police had not associated them with the recovery proceedings---Such discrepancies and contradictions created reasonable doubt in the prosecution case, benefit of which would resolve in favour of accused persons.

(d) Criminal trial---

----Benefit of doubt---Principle---If a single doubt appeared in prosecution evidence, its benefit would go to the accused.

More v. The State 2013 PCr.LJ 1730; Ali Muhammad v. Muhammad Akram and another and Ali Muhammad v. Qabir Ahmed and 4 others 2014 SCR 351 and Muhammad Jamroze v. Raja Muhammad Sabir and another 2016 SCR 1150 rel.

(e) 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 interfered with until and unless same were found perverse.

Muhammad Ismaeel Khan v. Sajjad Hussain and 14 others 2014 SCR 442 and Abdul Majeed and 4 others v. Muhammad Latif and 3 others 2016 SCR 1306 rel.

Nemo for Appellants.

Raja Khalid Mahmood for Respondents Nos. 1 to 3.

Mahmood Hussain Chaudhary, Additional A.-G. for the State.

2018 P Cr. L J 20

[Islamabad]

Before Aamer Farooq, J

RIZWAN SHABBIR KIYANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Rev. No. 64 of 2017, decided on 12th June, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 28, 30, 561-A & Sched.-II---Penal Code (XLV of 1860), Ss. 394, 511 & 337-A(iii)---Voluntarily causing hurt in committing robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, causing shajjah-i-hashimah---Magistrate Ist class thinking that the offences being not triable by him the matter be placed before the Sessions Judge for appropriate order---Sessions Judge entrusted the matter to the Magistrate having powers under S. 30, Cr.P.C.---Petitioner contended that reference could only be made to the Sessions Judge if the offence was exclusively triable by the sessions court---In the presentcase, the offences were triable by the sessions court or Judicial Magistrate 1st Class and if at the time of passing the sentence, the Magistrate concerned was of the opinion that the sentence awarded was beyond his jurisdiction, the report under S. 173, Cr.P.C. could be returned for filing the same before the court of competent jurisdiction and reference to the sessions court was not appropriate---Validity---Offences in question were triable either by court of session or Magistrate 1st Class---Since the offences were not exclusively triable by the court of session, therefore the matter could not have been referred to the court of session under S. 190(2), Cr.P.C.---Court of session was not competent to take cognizance of any offence as the court of original jurisdiction under S. 193, Cr.P.C., unless the case had been sent to it under S. 190(2), Cr.P.C. by a Magistrate duly empowered in that behalf---Question that quantum of punishment was beyond the powers of a Magistrate was not enough to take away the jurisdiction of the court to try the offence---Under Second Schedule to Cr.P.C., the offences as mentioned in the present case were triable by Judicial Magistrate 1st Class or court of session therefore, the Judicial Magistrate 1st Class had the jurisdiction in the matter---If the Judicial Magistrate was of the opinion that the sentence which was to be awarded to the accused was beyond his jurisdiction/competency, reference was not to be sent to the sessions court under S. 190, Cr.P.C. in such a situation, report under S. 173, Cr.P.C. would be returned for filing the same before the court of competent jurisdiction---Criminal revision petition was allowed accordingly.

Wasaya and others v. Sikandar Hayat and others 2002 SCMR 193; Mohsin Ali v. Additional Sessions Judge, Faisalabad and another PLD 2013 Lah. 12; Rao Fahd Ali Khan v. The State and another 2014 PCr.LJ 1071; Hassan v. The State and another PLD 2017 Lah. 106 and Noor Hussain v. The State PLD 1996 SC 88 rel.

PLD 2013 Lah. 12 ref.

Raja Rizwan Abbasi and Wajid Hussain Mughal for Petitioner.

Sarfraz Ali Khan, State Counsel with Muhammad Akram, IO/SI for Respondents.

Muhammad Asif Tanoli for Accused.

2018 P Cr. L J 87

[Islamabad]

Before Athar Minallah and Mohsin Akhtar Kayani, JJ

REGIONAL DIRECTOR ANTI-NARCOTICS FORCE, RAWALPINDI through Additional Director Law---Appellant

Versus

MUHAMMAD ASLAM---Respondent

Criminal Appeal No. 151 of 2016, heard on 29th May, 2017.

(a) Criminal trial---

----Sentence, quantum of---Determining factors---Discretion exercised by court in awarding sentence---Broad guidelines to be followed while exercising discretion for determining the quantum of sentence in the facts and circumstances of each case detailed.

Following are the guidelines for exercising discretion in determination of quantum of sentence:

(a) The Court has the discretion to award an adequate sentence having regard to the facts and circumstances of the case at hand.

(b) Discretion has to be structured and exercised by applying an independent mind, uninfluenced by irrelevant or extraneous considerations. Such application of mind ought to be obvious from the reasoning recorded in each case.

(c) While determining the quantum of sentence the underlying object and purpose of the relevant statute and the gravity of offence ought to be taken into consideration. Sentence has to be proportionate to the gravity of the offence.

(d) The gravity of an offence is indicated by the maximum punishment prescribed under the relevant statute and it is for the Court to judge the extent to which an act committed falls short of the maximum punishment prescribed by the legislature.

(e) If the relevant statute prescribes two or more punishments for an offence then imposing the lesser punishment would only be justified if the Court is satisfied that extenuating or mitigating circumstances exist for doing so.

(f) The nature of proof has no relevance with the character of the punishment.

(g) All the circumstances surrounding the guilt must be carefully borne in mind. The punishment or sentence should be adequate so as to have an effective deterrence for the offender as well as the rest of the society.

(h) If the sample sent for chemical examination is not a representative sample of the entire substance recovered then the quantum of sentence would be determined on the basis of the weight of samples sent for examination.

(i) The sentence prescribed by the legislature in the relevant statute has to be applied with the same rigour to every person subjected to it regardless of his or her nationality, age, social or financial status etc.

(j) The nature of the recovered substance would be a relevant factor to consider. The quantity of recovered substance and not the weight on the basis of processing thereof will be taken into consideration.

(k) When the recovery is made from possession of more than one convict then each would be liable on the basis of the whole quantity.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; Collector of Customs, Collectroate of Customs, Rawalpindi v. Khud-e-Noor and others 2006 SCMR 1609; Joshua Chigbogu v. The State 2006 SCMR 1539; Zahid Imran and others v. The State PLD 2006 SC 109; Faisal Aleem v. The State PLD 2010 SC 1080; Ameer Zeb v. The State PLD 2012 SC 380; Khuda Bakhsh v. The State 2015 SCMR 735; Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817; Hassan and others v. The State and others PLD 2013 SC 793; Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 and The State through Director ANF Peshawar v. Rashmali Khan and others PLD 2016 SC 471 rel.

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

----S. 9---Recovery of narcotic substances---Sentence, quantum of---Stereotype formula---Authorities were aggrieved of sentences awarded to accused persons on the basis of their confessional statements under a stereotype formula, despite the fact that narcotic substances of different quantity was recovered---Validity---Convictions and appeals were based on confessional statements made by accused persons before Trial Court---None of the accused challenged conviction by preferring appeal---Such convictions had attained finality and were accordingly maintained---Judgments were not sustainable to the extent of sentences handed down in each case as stereotype formula was adopted by Trial Court for awarding sentence in each case---High Court declared such awarding of sentence as illegal, arbitrary exercise of discretion and in violation settled principles of law---High Court remanded the cases to Trial Court to determine quantum of sentence afresh, in each case---Appeal was allowed accordingly.

Ch. Ehtisham ul Haq, Special Prosecutor, ANF for Appellant.

Ms. Kalsoom Akhtar, Ms. Mehraj Tareen, Moshin Ghaffar Mughal and Saif Ullah Siddiqui for Respondent.

2018 P Cr. L J 521

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitioner

Versus

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

W.Ps. Nos. 3883, 3884 and 3885 of 2017, decided on 4th December, 2017.

(a) Interpretation of statutes---

----Words used by legislature were to be read and understood in plain and ordinary meaning.

[Case-law referred]

(b) Interpretation of statutes---

----'May'---Connotation---Words 'may' is discretionary and enabling word unless subject matter shows that exercise of power given by provision using word 'may' was intended to be imperative by person to whom power is given---Word 'may' in isolation from context in which it is used in a statute, has to be treated as permissive in nature and imports a discretionary power.

[Case-law referred]

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

----Ss. 9(a)(iv)(v) & 17(d)---Criminal Procedure Code (V of 1898), S. 234---Offences of same kind---Scope---Provisions of National Accountability Ordinance, 1999 and S. 234, Cr.P.C.---Comparison---Joinder of charges---Scope---Petitioner was facing trials in three References on charges of accumulating assets beyond his known sources of income allegedly accumulated in different periods--- Plea raised by petitioner was that all three trials should have been charged jointly in exercise of powers under S. 17(d) of National Accountability Ordinance, 1999---Validity---Comparison of S. 17(d) of National Accountability Ordinance, 1999 and S. 234, Cr.P.C. showed that former was made more open-ended as there was no restriction in the same as to time and number of offences with which a person could be charged and tried in one trial---Offences of the same kind were not defined in National Accountability Ordinance, 1999, however, definition/explanation of concept was provided in S. 234(2), Cr.P.C.---Offences were of same kind when they were punishable with same amount of punishment, under same section of P.P.C. or any special or local law---Joinder of charges as provided under S. 234, Cr.P.C. was procedural as well as directory and not mandatory---Accused could not insist for joinder of charges unless it could be shown that separate trials or charges would prejudice his case to such an extent that same amounted to illegality---Petitioner had no vested right to claim joinder of charges or be tried together in one trial against three References---High Court in exercise of Constitutional jurisdiction declined to interfere in order passed by Trial Court as same did not suffer from any illegality or jurisdictional defect---Constitutional petition was dismissed in circumstances.

[Case-law referred]

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Interlocutory order---Scope---High Court while hearing petition under Art. 199 of the Constitution does not sit as court of appeal and scope, on basis of which a challenge can be made, is very restricted---Petition under Art. 199 of the Constitution does not lie against an interlocutory order unless same is patently illegal or suffers from jurisdictional defect.

Azam Nazir Tarar, Amjad Hussain, Khawar Ikram Bhatti, Saad Hashmi and Raja Khurram Shahzad for Petitioner.

Sardar Muzaffar Ahmad Khan, M. Afzal Qureshi, M. Asghar Awan and Irfan Ahmad Boota for Respondents.

2018 P Cr. L J 674

[Islamabad]

Before Athar Minallah, J

Mst. ASMA KHURSHEED and another---Petitioners

Versus

STATION HOUSE OFFICER, AABPARA ISLAMABAD and another---Respondents

Writ Petition No. 4173 of 2017, decided on 18th December, 2017.

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

----Ss. 145, 107 & 151---Dispute concerning land etc.---Breach of peace---Object, purpose and scope of S. 145, Cr.P.C.---Magistrate, jurisdiction of---Object and purpose of powers conferred under S. 145, Cr.P.C. is to prevent imminent apprehension of breach of peace over water, land or boundaries thereof---Mandatory jurisdictional requirements to proceed under S.145, Cr.P.C. are (a) existence of a dispute likely to cause breach of peace, (b) dispute is in respect of land or water or boundaries thereof, and (c) subject matter is situated within the limits of territorial jurisdiction of Magistrate---Existence of such factors is a pre-requisite for making a preliminary order under S.145(1), Cr.P.C.---Magistrate while conducting an inquiry under S.145, Cr.P.C. is not competent to decide either title of property or right of parties regarding possession; it only empowers Magistrate to regulate possession of property in dispute for the time being to avert apprehension of breach of peace---Jurisdiction of a Magistrate is ousted in a case in which a competent Court is already seized with the subject matter of dispute and has passed an order regulating possession thereof or in a case in which a decree for possession has been granted or permanent injunction has been ordered restraining other party from interfering with possession---As such the same does not preclude exercising powers under Ss. 107 & 151, Cr.P.C.

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

----S. 145---Dispute concerning land etc.---Attachment of property---Pre-condition is that there exists sufficient material of imminent danger or breach of peace---If the material is not sufficient then property cannot be attached though Magistrate may hold an inquiry.

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

----S. 145---Dispute concerning land etc.---Attachment proceedings---Starting point of dispute---Scope---Starting point for initiating proceedings under S. 145, Cr.P.C. is the date when Magistrate is satisfied that an apprehension of a breach of peace exists and not when he receives a report from police officials or an information from any other source.

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

----Ss. 107 & 145---Dispute concerning land etc.---Emergency, absence of---Effect---In case there is no emergency, attachment order cannot be passed and the only action called for is under S. 107, Cr.P.C.

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

----S. 145---Dispute concerning land etc.---Magistrate, duty of---Magistrate is required under S. 145, Cr.P.C. to declare as to which one of the parties is entitled to remain in possession---Magistrate is empowered under proviso to S. 145(4), Cr.P.C. to determine whether any party was forcibly and wrongfully disposed within two months before the date of order passed under S. 145(1), Cr.P.C. and if so to treat such party in possession on that date.

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

----S. 145---Dispute concerning land etc.---Attachment order, withdrawal of---Effect---If a property was attached then upon withdrawal of the order, it is the duty of Magistrate to restore property to the person from whose possession it was taken---In the event of declaration pursuant to proceedings under first proviso to S. 145(4), Cr.P.C., possession may also be restored to the party treated as having been forcibly or wrongfully dispossessed.

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

----S. 145---Dispute concerning land etc.---Inquiry by Magistrate---Object, purpose and scope---Provision of S. 145, Cr.P.C. does not concern with an inquiry relating to ownership or right to possess; it is concerned to the extent of determining as to which party was in possession at certain relevant times---Inquiry under S. 145(4), Cr.P.C. is confined to determining as to which party was in possession on the date of preliminary order passed under S. 145(1), Cr.P.C.

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

----Ss. 107, 151 & 145---Immovable property, sealing of---Petitioners assailed order passed by Magistrate sealing property in question on the plea of apprehension of breach of peace---Validity---State functionaries on the pretext of a likely breach of peace, dispossessed petitioner by sealing the property---Such extreme step was a grave abuse of power vested in public functionaries---High Court declared statement of Station House Officer of Police Station more alarming to the effect that some of the alleged perpetrators had a criminal record, therefore, sealing of property was recommended---High Court declared attachment order and all proceedings as void, without lawful authority and jurisdiction---High Court directed the authorities to immediately remove seal and restore possession to petitioners---Petition was allowed in circumstances.

[Case-law referred]

Ms. Reheema Khan and Malik Abdul Latif Khokhar for Petitioners.

Naseem Ahmed Shah for Commissioner Office, ICT, Islamabad.

Riaz Hanif Rahi for the Respondent No.2.

Ch. Abdul Khaliq Thind and Muhammad Naeem Gujjar for the Attorney of Naveed Khursheed.

Mian Abdul Rauf, Advocate-General Ialamabad.

Saad Bin Asad, A.C. City, ICT, Islamabad.

2018 P Cr. L J 807

[Islamabad]

Before Mohsin Akhtar Kayani, J

Dr. AFTAB ALI MALIK---Appellant

Versus

Dr. SHAHBAZ HANIF and another---Respondents

Criminal Appeal No. 71 of 2013, decided on 3rd November, 2017.

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

----Ss. 337-A(ii), 337-F(i) & 506---Causing shajjah-i-mudihah, causing damiyah, criminal intimidation---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the respondent along with two accomplices assaulted on the complainant---Respondent-Accused was wearing a knuckle duster with which he gave fist blow upon the left eye of complainant and all the accused dragged him and extended life threats, they also snatched his wallet including cash of Rs. 51,000, credit card and ATM card---Accused fled away from the scene on the intervention of security guard and other employees of the hospital---Ocular account was furnished by two witnesses, who were allegedly taxi drivers, and the complainant---Statements of eyewitnesses established that there was clear difference in material points in their statements as one eye-witness had not referred the knuckle duster in his statement---Said witness stated that one of the accused raised lalkara, which showed that respondent-accused had not raised any lalkara for extending life threats---Other eye-witness stated that respondent-accused raised lalkara to commit murder---Both the eyewitnesses had improved their statements on number of material things, which were not recorded in their earlier statements---Statements of both the witnesses were full of contradictions---Presence of the said witnesses on the spot was doubtful, especially when one of the witnesses had himself acknowledged that he was a Property Dealer and there was no occasion to justify his stance that he was a taxi driver---Investigating Officer had not produced any document on record or evidence to substantiate that both the eyewitnesses were taxi drivers who were present on the scene---Complainant stated in his complaint that security guard and other employees of the hospital came to rescue him, but not a single security guard or hospital employee had been produced as a prosecution witness---Said fact demonstrated that the complainant maneuvered the said eyewitnesses, whose statements had been recorded after seven days of occurrence in order to justify the allegations of complainant in the present case---Record showed that certain disciplinary actions were initiated against the complainant on the complaint of respondent-accused, which revealed that a clandestine reason behind the inimical and hostile conduct of complainant against respondent-accused was available prior to the said incident---Statement of the complainant showed that eye-witnesses were not present and he had improved his case to involve respondent-accused in the present case---Medico Legal Certificate showed that certain tamperings were observed to the extent of stitching of wounds which was not available in the original document---Marked difference of ocular and medical evidence existed on record---Record transpired that Investigating Officer of the case was not legally authorized to investigate the matter unless the same would have been transferred to him through a valid order---Investigating Officer had acknowledged the said fact, therefore, the investigation conducted by him was not legally justified---Investigating Officer stated during his cross-examination that offence about snatching of wallet including cash, wrist watch, credit card and ATM card was not mentioned in the FIR, as the verification of the said allegations had not been effected---Investigating Officer deposed that complainant did not state any thing about the amount, wrist watch and ATM card in his statement recorded under S. 161, Cr.P.C.---Circumstances established that the eyewitnesses had not been able to establish their presence at the scene of occurrence and crime remained un-witnessed---Prosecution was bound to prove the case against accused beyond any reasonable doubt throughout and said burden could never be shifted to accused, therefore, conviction could not be awarded in such like cases---Appeal against acquittal was dismissed in circumstances.

Intizar Hussain v. Hamza Amir and others 2017 SCMR 633; Abdul Majeed v. The State 2011 SCMR 941 and Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 161---Statement recorded at belated stage---Effect---Statement under S. 161, Cr.P.C., if recorded with delay, had no legal worth.

Shaukat Ali and 2 others v. The State 2017 YLR 724 rel.

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

----S. 340(2)---Statement of accused in defence---Scope---Instead of offering explanation regarding allegation, the accused remained silent or offered a false explanation---Burden of proof, in circumstances, would not shift onto the accused as it was for the prosecution to prove its case.

Saeed Ahmed v. The State 2015 SCMR 710 and Gul Muhammad v. The State and another 2016 PCr.LJ Note 9 rel.

(d) Criminal trial---

----Cross-examination---Accused could take different stance and several defences during cross-examination but the prosecution could not improve the case by such kind of stances---Inconsistent pleas taken by accused in cross-examination would not be beneficial for the prosecution.

(e) Criminal trial---

----Benefit of doubt---Scope---Prosecution is duty bound to prove the guilt of accused beyond any reasonable shadow of doubt and once reasonable doubt is established, its benefit must be extended to the accused not as a grace but as of right.

Wajahat Ahmed and others v. The State and others 2016 SCMR 2073 rel.

(f) Criminal trial---

----Defence plea---Scope---Any stance taken by the accused in the cross-examination in form of suggestion and even defence taken by him would not prove the entire case, prosecution would have to stand on its own evidence---Defence version brought on record by the accused would not give any benefit to the prosecution in any manner.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

Raja Rizwan Abbasi and Sohail Akhtar for Appellant.

Sher Afzal Khan for Respondent No.1 along with Respondent No.1 in person.

Sarfraz Ali Khan, State counsel and Ms. Saima Naqvi, State counsel for the State.

2018 P Cr. L J 841

[Islamabad]

Before Aamer Farooq, J

The STATE---Petitioner

Versus

MAHEEN ZAFAR and another---Respondents

Criminal Original No. 1 of 2017, decided on 17th April, 2018.

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

----S. 154--- First Information Report (FIR)--- Complaint which culminated into FIR not signed by the complainant---Effect---If there was any procedural irregularity including not signing of the complaint, same would not vitiate the criminal trial or tarnish the case of the prosecution in any way.

Muhammad Asif and others v. The State and others 2006 PCr.LJ 1191; Durab and others v. State of U.P. Criminal Appeals Nos. 1492 and 1587 of 1983; Rajoo v. State of M.P. Criminal Appeal No. 266 of 1990 and A.W. Khan v. The State Criminal Appeal No. 324 of 1961 ref.

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

----S. 342---Wrongful confinement---Appreciation of evidence---Allegation that accused persons had wrongfully confined a minor in their house and tortured her---Validity---Minor was working as a servant at the residence of accused persons, and the prosecution had not produced any evidence which went on to show that she was wrongly confined---Even the statement of the minor in her examination-in-chief, did not divulge anything to the effect which went to establish wrong confinement---Prosecution had failed to prove the charge of wrongful confinement in circumstances---Accused was acquitted of the charge accordingly.

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

----Ss. 337-A(i) & 337-F(i)--- Shajjah-i-khafifah, ghayr-jaifah-damiyah---Appreciation of evidence---Allegation that accused had caused multiple injuries to a minor child/victim, who worked as a servant at the house of the accused---Validity---Admittedly, there was no ocular account of causing injuries by the accused---In her cross-examination, the minor stated that nobody hit her and she had fallen down and that she was living voluntarily at the residence of the accused, who also took her to a doctor---During the course of cross-examination, the doctor who initially examined the minor admitted that skin of child was more sensitive and that the injuries could have been either accidental or homicidal---Said doctor also stated that the burn injuries could have been caused because of match box accident---Case of the prosecution was based on medical as well as circumstantial evidence on the basis of which it could not be said that the charges in question had been proved beyond reasonable doubt against the accused---Accused was acquitted of the charge accordingly.

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

----Art. 19---'Res gestae', principle of---Scope---Exception to the rule of hearsay---Under the principle of 'res gestae' if the victim informed someone immediately about the occurrence and had no time to meditate or make up things then the same was admissible in evidence as an exception to hearsay rule.

Faqir Muhammad v. The State PLD 1971 Lah. 929 and Sameeullah Khan v. The State 2000 MLD 1290 ref.

(e) Criminal trial---

----Circumstantial evidence---Scope---Conviction could be based on circumstantial evidence if it consisted of a continuous chain without any missing link.

Sango and another v. The State 2004 PCr.LJ 1479; Shahid alias Shah v. The State 2002 MLD 1459 and Muhammad Qadeer v. The State 2007 YLR 625 ref.

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

----S. 328-A---Cruelty to a child---Appreciation of evidence---Allegation against the accused persons was that they had ill-treated/neglected a minor, who was working as a domestic servant at their house---Validity---Statements of prosecution witnesses showed that the minor was left alone at the residence of the accused persons and was locked out till late; that the minor had not been provided food and was found by some of the witnesses in an injured condition; that the minor often asked a servant from a neighbouring house for food; and that the minor was not given proper treatment for her injuries---Accused persons admitted that the minor was working as a servant at their house, hence, the accused were jointly responsible for taking care of the minor---Accused persons neglected and/ or wilfully harmed and abandoned the minor which resulted in harm to her or had the potential of causing harm---Accused persons had committed the offence as charged and the prosecution had proved the same beyond shadow of doubt---Accused persons were sentenced to simple imprisonment of one year with fine of Rs. 50,000 each.

Tariq Mehmood Jahangiri, Advocate-General for Islamabad.

Malik Awais Haider, State counsel and Muhammad Rafiq, Inspector for Petitioner.

Raja Zahoor-ul-Hassan for the Complainant.

Raja Muhammad Farooq for Respondent No.1.

Raja Rizwan Abbasi, Sohail Akhtar, Naila Noreen and Raaz Ali Shah for accused/Respondent No.2.

Raja Khurram Ali Khan, accused/Respondent No.2 in person.

2018 P Cr. L J 899

[Islamabad]

Before Shaukat Aziz Siddiqui, J

STATE through Advocate-General of Islamabad---Petitioner

Versus

MATI ULLAH JAN and 4 others---Respondents

Criminal Original No. 40 of 2018, decided on 21st February, 2018.

(a) Constitution of Pakistan---

----Arts. 204(2)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), S. 4---Contempt of Court---Television show---Maligning Superior Courts---Unconditional apology---Allegation against the host of the television show and his guests ("respondents") was that during the show the name of a High Court judge was repeated time and again with mala fide intention, ulterior motives and in order to mislead the viewers, and that a unilateral opinion without verification was expressed and an attempt was made to malign the superior Courts of the country---Respondents/alleged contemnors had admitted the allegations and tendered unconditional apology, by stating that they would remain careful in future, therefore, the High Court by showing grace and kindness discharged the contempt notices and dropped the contempt proceedings initiated against the respondents---High Court observed that it was the prime responsibility of Pakistan Electronic Media Regulatory Authority ("PEMRA") to play its role by keeping a watchful eye on the programmes, especially talk shows, which were being telecast on the news channels on daily basis, and instead of being awoken by the Courts or any other institute, PEMRA itself was required to act in accordance with their rules and regulations to avoid violation of terms and conditions contained in the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and Electronic Media (Programmes and Advertisement), Code of Conduct, 2015 so as to make sure that violation of provisions of Art. 19 of the Constitution had not been made by any of the news channels---Contempt proceedings were discharged accordingly.

Zulfiqar Ali v. The State 1999 SCMR 2810 and Raja Munawar and others v. The State 1990 SCMR 215 fol.

(b) Constitution of Pakistan---

----Art. 19---Freedom of speech---Scope and limitations---Print and electronic media---Freedom of speech did not provide license to any person to make personal attempts on an individual or an institution to disgrace his dignity and reputation---Government should, therefore, strike a just and reasonable balance between the need for ensuring the people's right of freedom of speech and expression on the one hand and the need to impose social control on the business of publication and broadcasting.

Faiz Ahmed Cheema v. Federation of Pakistan through M/o Interior nd others PLJ 2017 Islamabad 162 ref.

M. Akram Gondal, State counsel.

Barrister Taimoor Aslam Khan for Respondent No.2.

Syed Safeer Hussain Shah for Respondents Nos. 2 to 5.

Respondents Nos. 1, 3, 4 and 5 in person.

2018 P Cr. L J 1264

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

The STATE through DG FIA Islamabad---Appellant

Versus

SHOAIB AHMED SHEIKH and 26 others---Respondents

Criminal Appeal No. 25 of 2017, decided on 25th April, 2018.

Penal Code (XLV of 1860)---

----Ss. 419, 420, 468, 471---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Anti-Money Laundering Act (VII of 2010), S.4---Criminal Procedure Code (V of 1898), S. 417---Cheating, forgery, violation of privacy of information, damage to information system and money laundering---Appeal against acquittal---Bias in the mind of judge---Illegal gratification---Proof---All accused facing trial were acquitted by Trial Court---Plea raised by prosecution was that Presiding Judge of Trial Court was removed from service for having received illegal gratification from accused persons---Effect---Slightest pecuniary interest of a judge disqualified the latter and depending on facts and circumstances of each case, any kind of bias vitiated proceedings or decision as the case might be---Presiding Judge was proceeded against and major penalty of removal from service was imposed upon him on the allegation of accepting illegal gratification from accused persons---Judgment passed by Trial Court was vitiated on the ground of pecuniary interest of Presiding Judge against whom charge of accepting illegal gratification stood established---High Court set aside the judgment passed in favour of accused persons and remanded the case to Trial Court for decision afresh after affording opportunity of hearing to all parties---Appeal was allowed in circumstances.

Khairdi Khan and others v. The Crown PLD 1953 FC 223; Haji Muhammad Jalal v. Ijaz Ahmad Bajwa, Assistant Director, FIA, State Bank Circle, Lahore, and others 2000 MLD 837; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Ms. Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140; Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; Anwar and another v. The Crown PLD 1955 FC 185; Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689; Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104 and Muhammad Adnan alias Dana v. State 2015 SCMR 1570 ref.

Syed Hamid Ali Shah and Syed Ishfaq Hussain Naqvi, Raja Khalid Mehmood, Deputy Attorney General and Gohal Ali Shah, SI/IO/FIA for Appellant.

Dr. Babar Awan, Raja Rizwan Abbasi, Haroon-ur-Rashid, Sohail Akhtar, Sher Afzal Khan, Naila Noreen, Raaz Ali Shah, Imdad Ali and Tajamul Hussain for Respondents.

2018 P Cr. L J 1328

[Islamabad]

Before Mohsin Akhtar Kayani, J

Mst. SAIMA BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE (EAST), ISLAMABAD and 3 others---Respondents

Writ Petition No. 2057 of 2018, decided on 30th May, 2018.

(a) Pakistan Prisons Rules---

----Rr. 326 & 327---Woman prisoner could keep her child with her in prison till the age of six years.

Verse 233 of Sureh Baqarah and Sahee Muslim Sharif on Serial No.4432 fol.

(b) Islamic Law---

----Custody of minor---Suckling baby---Feeding the suckling baby is of great importance and sentence of woman prisoner could be postponed while the child was being fed by his/her mother---Child could not be deprived of such right if mother was available and willing to feed the child.

Verse 233 of Sureh Baqarah and Sahee Muslim Sharif on Serial No.4432 rel.

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

----S. 491---Habeas Corpus petition---Temporary custody of minor---Scope---Efficacious and speedy remedy---Scope---High Court was empowered to issue directions in the nature of habeas corpus if the custody of minor was illegally or improperly disturbed---Section 491, Cr.P.C. provided more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minor---High Court could pass order regarding the temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardian Court.

Mst. Shahista Naz v. Muhammad Naeem Ahmed and another 2004 SCMR 990 rel.

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

----S. 491---Pakistan Prisons Rules, Rr.326, 327 & 328---Constitution of Pakistan, Art. 35---Habeas Corpus petition---Custody of minor (girl)---Suckling baby---Mother, confined in prison---Child to be allowed to remain with mother in prison---Scope---Duty of State---Principle of protection of family---Scope---Mother, confined in prison, filed petition for custody of her suckling baby---Legality---Woman prisoner could keep their children with them in prison till they attain the age of six years---State had to provide the diet and clothing for the child in every manner in all situations---State was responsible to provide every basic need to the minor and the mother whether she was in judicial custody or otherwise---High Court allowed the mother to retain the minor with her.

Mudassar Rizwan, Ms. Saba Batool Mumtaz and Ms. Bushra Raja Chishti for Petitioner and Petitioner in person.

Raja Gul Nawaz for Respondent No.4 along with Mst. Javaria.

Jamshed Khan, Inspector/SHO and Muhammad Aslam, Inspector, Police Station Lohi Bher, Islamabad.

Sajid, S.-I., Azra, Lady Constable, Shoaib Khan, H.C. and Rab Nawaz Constable, Adyala Jail, Rawalpindi.

2018 P Cr. L J 1429

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MARYAM NOOR and another---Petitioners

Versus

The STATE and another---Respondents

W.P. No. 941 of 2018, decided on 4th May, 2018.

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

----Ss. 420, 468 & 471---Constitution of Pakistan, Art. 199---Quashing of FIR---Petitioner was ex-wife of respondent with custody of minor children with her---Respondent got an FIR registered against ex-wife on the allegation that she intended to take the children abroad on the basis of fake passports and other documents---Validity---First Information Report lodged was tainted with mala fide, result of colourable exercise of authority, abuse of process of law, without commission of any offence and rarity in the eyes of law---Constitutional courts were to protect the citizens from malicious prosecution---High Court, in exercise of discretionary powers under Art. 199 of the Constitution quashed the FIR filed against the ex-wife---Constitutional petition was allowed accordingly.

1993 SCMR 71; 2000 SCMR 122; 2012 SCMR 94; 1996 SCMR 186 and 2006 SCMR 276 ref.

Sheikh Muhammad Tahir v. The State and others 2012 PCr.LJ 1075 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of FIR---Situations wherein discretion of exercising the authority of quashing of FIR could be made by the High Court.

Following are the situations wherein discretion of exercising the authority of quashment of FIR can be used.

(i) If from the bare reading of the FIR it does not make out any cognizable offence.

(ii) If the same has been registered without lawful authority and jurisdiction.

(iii) If any civil liability is given the shape of criminal liability.

High Court being custodian of the fundamental rights of the citizens is under obligation to provide shield against any invasion made on the guaranteed constitutional rights and protect the subject from discrimination, exploitation, colourable exercise of authority, bolted actions, mala fide and stinking proceedings.

Husnain Sikandar and Husnain Haider along with Petitioner and minors for Petitioners.

Shakil-ur-Rehman Khan along with Respondent for Respondents.

2018 P Cr. L J 1653

[Islamabad]

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

SHAHID AZEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 506 and Murder Reference No. 80 of 2009, decided on 11th July, 2018.

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

----Ss. 302(b), 376, 364 & 201---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping and rape of minor, causing disappearance of evidence of offence---Appreciation of evidence---Confessional statement retracted but corroborated by evidence---Medical evidence confirmed that the deceased was strangulated besides being raped---Accused had led the investigating officer to the recovery of a shawl and slippers---Slippers were identified by the complainant as those of his daughter i.e. the deceased---Accused had also led to the recovery of a piece of cloth, which according to his own confessional statement was used for the purpose of cleaning after he had committed the offence---Accused had also led the police to the place where he had left the dead body of the deceased and the investigating officer had accordingly recorded a memo to such effect---Relationship of the accused with the complainant was cordial, thus, there was no reason for involving the accused in the present case falsely---Confessional statement of accused recorded by the Magistrate under S. 164 of the Cr.P.C., despite being retracted, was corroborated by evidence which was brought on record during the course of the trial---Such statement narrated actual facts as had happened on the day of occurrence---Recoveries were proved and corroborated by the confessional statement in material particulars---Moreover, the medical evidence established beyond a reasonable doubt that the confessional statement was not only voluntary but reflected the true facts which had led to the commission of the crime by the accused---From the time of his arrest till recording of his statement under S. 164 of the Cr.P.C., the accused had numerous opportunities to bring to the notice of various judicial forums before which he was produced any illegality committed by the police officials let alone having been subjected to torture after his confessional statement was recorded---Accused preferred to keep silent for more than seven months and belatedly filed an application stating therein that he had not recorded his confessional statement voluntarily---Accused being a citizen and national of a foreign country, had the added advantage of approaching the Diplomatic Mission for counselor assistance had he been dealt with otherwise than in accordance with the law---Record showed that at no stage had the accused made any request for allowing him to contact the Diplomatic Mission of the foreign country in question---Prosecution had established its case beyond a reasonable doubt---Sentence of death awarded to accused by Trial Court was confirmed in circumstances---Appeal was dismissed accordingly.

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

----S. 164---Confessional statement, retraction of---Principles---Retracted judicial confession could be legally taken into consideration if the Court was satisfied that it was true and recorded voluntarily i.e. not obtained by torture, coercion or inducement---Though a retracted confession was sufficient to sustain even a conviction of capital punishment but the rule of prudence required to consider the surrounding circumstances and that it should not be acted upon unless corroborated by other credible evidence in material particulars---Depending on the facts and circumstances in each case, delay in recording a confessional statement may or may not be fatal.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Khalid Javed and another v. The State 2003 SCMR 1419; Manjeet Singh v. The State PLD 2006 SC 30; Muhammad Amin v. The State PLD 2006 SC 219; Allah Nawaz v. State 2009 SCMR 736; Majeed v. The State 2010 SCMR 55; Dadullah and another v. The State 2015 SCMR 856; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Hashim Qasim and another v. The State 2017 SCMR 986 ref.

Jan Muhammad Khan for Appellant.

Muhammad Ishaq Shah and Malik Awais Haider Awan, State counsel for Respondent.

2018 P Cr. L J 1719

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Malik TARIQ AYUB and another---Petitioners

Versus

The STATE and 5 others---Respondents

Writ Petition No. 178 of 2017, decided on 12th July, 2018.

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

----Ss. 6, 7 & 23---Act of terrorism---Determination of---In order to determine, whether the offence fell within the meaning of 'terrorism' it was necessary to examine the allegations levelled in the FIR; the material collected by the Investigating Agency and the surrounding circumstances---Jurisdiction of Anti-Terrorism Court, under Anti-Terrorism Act, 1997 had been broadened by the use of the word 'design' in S.6 of the said Act---Where action of accused resulted in striking terror, creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity, it would amount to "terror" and such action would fall within the ambit of S. 6 of the Anti-Terrorism Act, 1997---Terrorist created sense of fear or insecurity and psychological impact on the minds of people or any section of the society---Determining factor of act of "terrorism" was the 'design' of accused in the commission of offence which had created a sense of panic, fear and helplessness in public or any segment of the public---Question of applicability of S.7 of Anti-Terrorism Act, 1997 could not be adjudged solely on the basis of available record---Recording of the prosecution evidence albeit some material evidence was essential---Trial Court erred in just following the record and not appreciating the essence of 'test' which could only be established through evidence---Impugned order was set aside.

[Case-law referred]

Kh. Haris Ahmad, Naveed Ahmad Khawaja, Muhammad Akram Qureshi and Zain Rahmat Qureshi for Petitioners.

Abdul Wahid Qureshi, Kh. Ahmad Tariq Rahim, Raja Zaheer-ud-Din Babar, Zafar Khokhar, Raja Ghaneem Aabir Khan, Ilyas Siddiqui, Azam Nazir Tarar and Sadaqat Ali Jahangir, State counsel with M. Yousaf, SHO/IO for Respondents.

2018 P Cr. L J 7

[Sindh]

Before Khadim Hussain Tunio J

Mst. NASREEN AKHTAR---Petitioner

Versus

The SECRETARY, HOME DEPARTMENT, GOVERNMENT OF SINDH and 3 others---Respondents

Constitutional Petition No. 1686 of 2016, decided on 17th March, 2017.

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

----Ss. 173 & 190---Investigation report, filing of---Duty of Court---Scope---When report under S. 173, Cr.P.C. is submitted, Magistrate has to act within the meaning of S. 190, Cr.P.C.---Exclusive jurisdiction lies with Magistrate either to take cognizance or refuse the same---Magistrate is not permitted under Criminal Procedure Code, 1898, to defeat the said provisions and cannot create a gap between two connected links i.e. S. 173, Cr.P.C. and S. 190, Cr.P.C. by not passing an order onto a report submitted before him under S. 173, Cr.P.C. even where all accused are shown as absconders.

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

----Ss. 173 & 190---Filing of investigation report---Process of Court, non-issuance of---Petitioner, after submission of police report filed application before Trial Court to issue non-bailable warrants against absconding accused persons which the Court had refused---Validity---Report/charge-sheet attained status of a 'case' only after exercise of jurisdiction vested in the Magistrate under S. 190, Cr.P.C.---During course of investigation police could arrest without warrants but when report was submitted, it was the Court which had to issue non-bailable warrants against absconders---Powers of police or private person to arrest absconder/proclaimed offender would not absolve Magistrate from issuing non-bailable warrants against those mentioned in relevant columns of Challan/charge sheet (report under S. 173, Cr.P.C.)---High Court set aside orders passed by Magistrate and remanded the matter for passing a speaking order and to record reasons for agreeing or disagreeing with report under S. 173, Cr.P.C. submitted by investigating officer after providing full opportunity of hearing to prosecutor and complainant---Petition was allowed accordingly.

Nasrullah v. SHO, PS Jacobabad and 6 others PLD 2016 Sindh 238 rel.

Muhammad Akbar Khan for Petitioner.

M. Nawab Mirza, State counsel and Zahoor Shah, A.P.-G. for Respondents.

2018 P Cr. L J 40

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

BASHARATULLAH KHAN---Petitioner

Versus

STATION HOUSE OFFICER, 'B' SECTION LATIFABAD, UNIT NO.6, HYDERABAD and others---Respondents

C.P. No. D-1902 of 2016, decided on 9th August, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B--- Ex-Officio Justice of Peace---Jurisdiction---Second complaint on same subject---Scope---Earlier, on application filed by petitioner, Ex-Officio Justice of Peace issued direction to the police---Petitioner filed another application on same cause of action before Ex-Officio Justice of Peace for direction to police but same was dismissed---Validity---On same grievance (complaint) appropriate direction was issued by Ex-Officio Justice of Peace but mere failure of petitioners to have desired result was not sufficient to allow him to repeat such application---If there was any defect in investigation, petitioner was competent to assail such investigation before proper forum or even if he was aggrieved with order of Magistrate whereby FIR was disposed under 'C' Class, then petitioner was required to challenge the same---Petitioner opted not to do so thereby letting both actions/orders to attain finality---High Court declined to interfere in order passed by Ex-Officio Justice of Peace---Constitutional petition was dismissed in circumstances.

Rafique Ahmed for Petitioner.

Syed Kamran Ali for Respondents Nos. 2 and 3.

Allah Bachayo Soomro, Additional A.-G.

2018 P Cr. L J 66

[Sindh]

Before Muhammad Iqbal Kalhoro, J

NAEEM AKHTAR alias ALI HAIDER and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1231 of 2017, decided on 25th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15---Possession of narcotic drugs, aiding, abetment or association in narcotic offences---Bail, refusal of---One hundred kilogram charas (narcotic) was recovered from the car and subsequently on pointation of accused, a total of three thousand, two hundred and thirteen kilogram charas was recovered from a warehouse---Such huge quantity of narcotics palpably could not be foisted upon the accused---Delay in registration of FIR was properly explained in the FIR that showed that in recovering the charas kept in different packets and in sorting it out and finally sealing it, time was consumed---Delay in conclusion of trial occurred due to change of advocates by the accused and their absence on dates of hearing when the witnesses were present---Non-compliance of directions by High Court to conclude trial within a specific period could not be considered as valid ground to grant bail to accused---Bail was refused accordingly.

Imtiaz Ahmed v. The State 2017 SCMR 1194 and Nisar Ahmed v. The State and others PLD 2016 SC 11 ref.

Umar Awan for Applicants.

2018 P Cr. L J 101

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MITHO alias MUHAMMAD MITHAL---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 15 others---Respondents

C.P. No. D-2655 of 2017, decided on 20th September, 2017.

Criminal Procedure Code (V of 1898)---

----S. 173(2)---Re-investigation---Complainant was aggrieved of order passed by police authorities to re-investigate the case---Validity---Further investigation was continuation of such investigation which culminated in further police report under S. 173(2), Cr.P.C.---If Trial Court had already taken cognizance and trial was initiated, then Trial Court could pass any appropriate order on such further or supplementary report---High Court declined to interfere in the order of 'further investigation' passed by police authorities, as such practice was not strange and singular in nature and police authorities enjoyed powers under statutory provisions---Constitutional petition was dismissed in circumstances.

Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Raja Jawad Ali Saahar for Petitioner.

Sajjad Ahmed Chandio and Mir Ahmed Mangrio for Respondents.

Ghulam Shabbir Zardari, Assistant A.-G.

2018 P Cr. L J 145

[Sindh]

Before Muhammad Humayon Khan, J

SAIFULLAH KHAN---Applicant

Versus

VIITH ADDITIONAL DISTRICT AND SESSIONS JUDGE (EAST), KARACHI and 7 others---Respondents

Criminal Miscellaneous Application No. 24 of 2016, decided on 4th August, 2016.

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

----Ss. 420, 468, 471 & 34---Specific Relief Act (I of 1877), S. 56(e)---Fraud, forgery, preparation of forged documents---Bar on civil court to stay criminal proceedings---FIR was registered against accused for fraud, forgery and preparation of forged documents---Accused moved application for stay of proceedings on ground that civil litigation on the subject was pending---Said application was dismissed by Trial Court as well as lower appellate court---Validity---Court dealing with civil suit was barred from staying proceedings in any criminal matter in view of embargo put by S. 56(e) of Specific Relief Act, 1877---Civil suit and criminal case both had to be decided on individual merits and evidence recorded in one of them could not be used in other nor judgment in civil suit would be binding in criminal case.

Malik Khuda Bakhsh v. The State 1995 SCMR 1621; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Seema Fareed and others v. The State and another 2008 SCMR 839 rel.

(b) Specific Relief Act (I of 1877)---

----S. 56(e)---Injunction---Scope---Court dealing with civil suit was barred from staying proceedings in any criminal matter.

Haji Zafar-ul-Haq for Applicant.

Abdullah Rajput, D.P.-G. for Respondents.

2018 P Cr. L J 396

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

SHAHZAD alias PAKORA and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 257, 258, 259 and 260 of 2016, decided on 25th August, 2017.

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

----S. 7---Penal Code (XLV of 1860), Ss. 353, 324, 427 & 34---Sindh Arms Act (V of 2013), S. 23-A(i)---Attempt to commit qatl-i-amd, mischief causing damage to fifty rupees, possession of arms and ammunition, common intention, terrorism, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Trial Court disbelieved prosecution evidence to the extent of main case and acquitted the accused from the charge under Ss. 353, 324, 427, 34, P.P.C. read with S. 7 of Anti-Terrorism Act, 1997---Trial Court believed the prosecution evidence in respect of connected cases without independent corroboration---No efforts were made by Police to capture accused who ran away easily from the scene of occurrence---Police encounter episode had already disbelieved by Trial Court---Memo of recovery revealed that number of weapons had not been described but prosecution witnesses had given description of weapons---Trial Court disbelieved defence plea (accused was arrested from house and weapons were foisted upon them in fake encounter) without assigning the reasons---Evidence of private witness was also not reliable because Police denied appearance of said witness in a number of Police cases but accused produced proof to show that he acted as witness in so many Police cases---Prosecution failed to prove its case against accused beyond any shadow of doubt---Appeals were allowed accordingly.

Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; Shahid Iqbal v. The State 2016 MLD 230; Moinuddin alias Waseem v. The State 2016 YLR 523; Ishaq Ahmad v. The State through A.N.F. Police Station Airport Road, Gilgit 2017 PCr.LJ 522; Abdul Ghani and others v. The State 2007 YLR 969; Taufique Khan v. The State 2007 YLR 2953 and Muhammad Shafi alias Papan v. The State 2011 PCr.LJ 1424 ref.

Tariq Pervez v. The State 1991 SCMR 1345 rel.

(b) Criminal trial---

----Benefit of doubt--- Scope--- Single circumstance which created reasonable doubt in a prudent mind about the guilt of accused would be enough for giving benefit of doubt to accused---Accused would be entitled to benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1991 SCMR 1345 rel.

Muhammad Hanif Samma for Appellants.

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

2018 P Cr. L J 418

[Sindh]

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

MUMTAZUL HAQ---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB)---Respondent

C.P. No. D-259 of 2017, decided on 14th September, 2017.

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

----S. 9---Criminal Procedure Code (V of 1898), S. 265-K---Corruption and corrupt practices---Application for quashment of NAB Reference, dismissal of---Allegation against the accused-petitioner was that in his capacity as Additional Director of a Development Authority he issued allotment orders in respect of plots carved out on land reserved for water conduit and high tension electricity line and allotted the same to fake claimants who could not be allotted properties in the area on account of double allotment---Accused filed an application before the Accountability Court under S. 265-K, Cr.P.C., contending that he had allotted said plots under duress and once such allotment orders were cancelled by him he was not liable to prosecution before the Accountability Court; held, that the allegations levelled against the accused, prima facie, manifested ill intentions muffled with corruption as valuable public property was handed over in compensation/alternate to the so called effectees who minted money by selling the same on higher rates---In view of the material available on record and progress made at the trial, quashing the NAB Reference against the accused at present stage would amount to stifling and prejudicing the prosecution case and influencing the Accountability Court where a number of co-accused were also facing trial---Constitutional petition was dismissed in circumstances.

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

----S. 561-A---Constitution of Pakistan, Art. 199---Acquittal---Inherent power of the High Court---Scope---Powers of the High Court either under Art. 199 of the Constitution or S. 561-A, Cr.P.C. could be exercised, inter alia, when there was no iota of evidence; where the very initiation of the proceedings was proved to be mala fide; where there were jurisdictional defects; where it was apparent that continuation of proceedings complained of would amount to abuse of process of Court; or where to secure the ends of justice it was absolutely necessary to exercise inherent powers.

Petitioner in person.

Muhammad Altaf, Special Prosecutor, NAB for Respondent.

2018 P Cr. L J 443

[Sindh]

Before Ahmed Ali M. Shaikh, C.J.

ANWAR ALI---Applicant

Versus

The STATE and 5 others---Respondents

Criminal Transfer Application No. 11 of 2017, decided on 5th June, 2017.

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

----S. 526---Application for transfer of case---Two versions in form of two FIRs---Police encounter---Applicant/complainant (father of deceased) sought transfer of case pending before Court of Session to Special Court (Anti-Terrorism)---Complainant alleged that Police (Station House Officer of Police Station "X") picked up his son, demanded illegal gratification and murdered him despite filing of habeas corpus petition which was pending before the Court of Session---While Police (Station House Officer of Police Station "Y") alleged that there was encounter with unknown terrorists in which three terrorists were killed and others made their escape good and son of complainant died during that encounter---Said case was pending before the Special Court (Anti-Terrorism)---Both the cases were cross-cases relating to different sets of accused persons while alleged murder of son of complainant was common---Two separate criminal proceedings in respect of murder of the deceased were pending in two distinct courts and when there were two versions in respect of same occurrence, trial ought to be conducted by one and the same court because serious likelihood of conflict could prevail, if two cases giving different versions of same incident were not tried together---Scheduled and non-scheduled offences could be tried in one and same trial by the Anti-Terrorism Court---Case pending before the Court of Session was ordered to be transferred to Special Court (Anti-Terrorism)---Application for transfer of case was allowed in circumstances.

Nur Elahi v. the State and others PLD 1966 SC 708; Mst. Rasool Bibi v. the State and another 2000 SCMR 641; Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Muhammad Sadiq v. The State and another PLD 1971 SC 713; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Rashid Ahmed v. Asghar Ali and others PLD 1986 SC 37; Mst. Rasool Bibi v. The State and another 2000 SCMR 641 and Niaz Ahmed v. Hasrat Mehmood PLD 2016 SC 70 rel.

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

----S. 2(t) & Third Sched.---Jurisdiction of Anti-Terrorism Court over non-scheduled offences---Scope---Anti-Terrorism Court could not try non-scheduled offence, however, when it was trying scheduled offence non-scheduled offence could also be tried in one and the same trial--- Power to try non-scheduled offence would not be available to Anti-Terrorism Court when it was not trying any scheduled offence; conversely an ordinary criminal court could not take cognizance of the offence mentioned in the Sched. to the Anti-Terrorism Act, 1997.

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

----S. 526 (1)---Transfer of case---Grounds---Circumstances when High Court could transfer case or try the same itself.

High Court may transfer case or itself try it (1) whenever it is made to appear to the High Court that (a) a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto, or (b) some question of law of unusual difficulty is likely to arise, or (c) a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or (d) that an order under section 526, Cr.P.C. will tend to the general convenience of the parties or witnesses, or (e) such an order is expedient for the ends of justice, or is required by any provision of this Code.

Wazeer Hussain Khoso for Applicant.

Fayaz Ahmed for Respondents Nos. 2 to 5.

Zafar A. Khan, APG for the State.

2018 P Cr. L J 460

[Sindh]

Before Khadim Hussain Tunio, J

HAMID ALI alias PIA---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 212 of 2015, decided on 26th May, 2017.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468, 471 & 411---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, dishonestly receiving stolen property, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Prosecution case was that the accused through cheating committed forgery by manipulating the public documents and drew the amount of Rs. 16,95,000/- from pension of different employees---Tampered pension vouchers and summaries relating to the embezzlement/misappropriation of huge amount were taken into possession during investigation---Said documents were taken into possession by the prosecution in proper manner and in accordance with law and produced the same before the court in the shape of articles---Said documents so produced could not be said to have been prepared or managed by the prosecution itself against the accused and such huge amount could not be foisted against the accused in any manner---Accused had not disputed the said documents in his evidence, therefore, it could safely be concluded that the accused was found in commission of embezzlement/misappropriation of pension amounting to Rs. 16,95,000/----Record transpired that on the pointation of accused, an amount of Rs. 6,72,000/- was recovered from his house, an amount of Rs. 1,80,000/- was recovered from his office table drawer, an amount of Rs. 3,00,000/-was recovered which was paid by accused for purchasing of house, an amount of Rs. 50,000 was recovered by the Investigating Officer---Said amount was produced in court through witness of recovery---Accused being public functionary was custodian of public record but committed forgery and fabrication to deprive the people from their respective pensions---Circumstances established that accused committed very heinous offence by manipulating the public documents and drew the huge amount from pension of different employees---Appeal against conviction was dismissed in circumstances.

1969 PCr.LJ 1317, PLD 1971 SC 61, 1974 SCMR 411, PLD 1981 Kar. 195, 1991 NLR Cr.LJ 604, PLD 1994 FSC 24, 1994 MLD 1360, 1995 SCMR 1345, 1995 NLR Cr. 10, 1995 SCMR 1345, 1995 SCMR 1377, 1996 PCr.LJ 1510, 1997 SCMR 196, 2005 YLR 2220 and PLD 2008 Kar. 3 ref.

Hassan Ahmedullah v. the State 2014 SCMR 1159 rel.

S. Ehsan Raza for Appellant.

M. Shoaib Mirza, Standing Counsel for the State.

2018 P Cr. L J 473

[Sindh]

Before Adnan-ul-Karim Memon, J

BABAR JAMEEL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 959 of 2017, decided on 18th July, 2017.

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

----S. 497---Bail application---Adjudication---Principles---Court, while deciding bail application would consider allegations made in FIR, statements recorded under S. 161, Cr.P.C., nature and gravity of charge, other incriminating material against accused, legal pleas raised by accused and the relevant laws.

Shahzad Ahmed v. The State 2010 SCMR 1221 rel.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14, 15 & 51---Possession of narcotic drugs, aiding, abetment or association in narcotic offences---Bail, refusal of---Accused was arrested red-handed with possession of Diazepam tablets (psychotropic substance)---Chemical Examination Report supported the prosecution case---Recovery of Diazepam tablets was witnessed by Police Officials who were as good witnesses as any other person---Police had no ostensible reason to falsely implicate accused---Case of accused was hit by prohibition contained in S. 51, Control of Narcotic Substances Act, 1997---Diazepam was mentioned in S. 2(za) at Serial No. 24 of Schedule of Control of Narcotic Substances Act, 1997 which came within the definition of "psychotropic substance" and was prohibited to possess and transport---Alleged offence fell under section 9(c) Control of Narcotic Substances Act, 1997 which was punishable with life imprisonment---Accused had failed to substantiate his claim that alleged recovered Diazepam tablets was for exceptions as provided in law, therefore, no case of further inquiry was made out---Bail was refused accordingly.

Wajid alias Waji v. The State 2016 PCr.LJ 831; Shahid Ali Laghari v. The State 2014 PCr.LJ 427; Tafseel Hussain alias Mantoo v. The State 2006 YLR 579; Muhammad Saleh v. The State 1987 PCr.LJ 1411; Sakina Bibi v. The State 2008 SCMR 1111 and Muhammad Hanif v. The State SBLR 2016 Sindh 29 ref.

Imdad Khan and Malik Muhammad Tarique for Applicant.

Habib Ahmed, Special Prosecutor for ANF.

2018 P Cr. L J 490

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

MUHAMMAD QASIM alias QASU and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-131 of 2009, decided on 24th March, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Incident took place in the daylight at 4.00 p.m. and FIR was lodged at 5.00 a.m. on the same day---Fact remained that complainant had taken the deceased in injured condition to hospital, where the deceased succumbed to injuries---After the death of deceased, it was made possible for complainant to come at the police station and lodged the FIR---Said factors happened within the span of one hour when the police station was at a distance of half kilometer---Circumstances established that FIR was lodged promptly and not with undue delay, it could not be conceived that that the complainant could have managed to fabricate a false story of incident to implicate the accused wrongly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that the accused party armed with deadly weapons assaulted on the brother of complainant and injured him---Victim was taken to hospital in injured condition but he succumbed to the injuries---Ocular account was furnished by two witnesses including complainant---Said eye-witnesses deposed consistently that the accused persons caused the death of the deceased as alleged against them---Complainant was younger brother of the deceased and his presence at the place of incident could not be said to be unnatural---Evidence of said witnesses appeared to be straight-forward and fair---Medical evidence corroborated the ocular evidence of said two witnesses on point of injuries found on the body of the deceased---Prosecution witness was declared hostile during the course of his examination---Said witness, in his cross-examination, stated that it was correct to suggest that after taking money from the accused, he patched up with the accused persons and decided not be a witness against the accused persons---Fact remained that said hostile witness in his statement recorded under S. 164 before the Judicial Magistrate had involved the accused persons in commission of the offence---When the other two eye-witnesses had consistently involved the accused persons in the commission of the offence, evidence of hostile witness could be ignored---Circumstances established that ocular evidence of two eye-witnesses corroborated by medical evidence was sufficient to establish the case of prosecution against the accused persons---Appeal against conviction was dismissed in circumstances.

2008 PCr.LJ 554; 1990 PCr.LJ 357; 2004 PCr.LJ 2052; 2009 YLR 702; 2005 PCr.LJ 138; 2015 SCMR 1142 and PLD 1993 SC 251 ref.

Mudassir alias Jemi v. The State 1996 SCMR 2003; Saeed Akhtar and others v. The State 2000 SCMR 383; Noor Muhammad v. The State and others 2005 SCMR 1958; Muhammad Waris v. The State 2008 SCMR 784 and Sahib Khan v. The State 2008 SCMR 1049 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Testimony of closely related witness---Reliance---Scope---One alleged eye-witness was brother of deceased while other eye-witness was his caste fellow---Witness, being merely related to or a caste fellow of deceased, challenged or unchallenged, would not essentially, in all circumstances, turn such person as an interested witness.

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

----Art. 150---Hostile witness---Scope---Evidentiary value of hostile witness---Evidence of witness who had been declared as hostile by the prosecution could be ignored.

Chaudhry Aftab Ahmed Warriach for Appellant.

Aijaz Shaikh for the Complainant.

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

2018 P Cr. L J 505

[Sindh]

Before Syed Muhammad Farooq Shah, J

Messrs DALDA FOODS (PVT.) LIMITED through Sales and Accounts Officer---Appellant

Versus

MUHAMMAD SULEMAN ATIF and others---Respondents

Criminal Acquittal Appeal No. 114 of 2011, decided on 24th May, 2017.

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

----Ss. 410 & 417---"Appeal against conviction" and "appeal against acquittal"---Parameters---Appeal against acquittal had distinctive features---Approach to deal with the appeal against conviction was distinguishable from the appeal against acquittal---Presumption of double innocence was attached in case of acquittal---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-reading of evidence or was artificial, arbitrary and led to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice was not enough for interference.

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

----S. 417---Appeal against acquittal---Scope---While examining the facts in the order of acquittal, substantial weight should be given to the findings of the Trial Court, whereby accused was exonerated from the commission of crime.

Muhammad Ijaz Ahmed v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was doubt about guilt of accused, its benefit would go to him---Court would never come to the rescue of prosecution to fill-up the lacuna appeared in evidence of prosecution case.

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

----Ss. 420, 468, 471, 408 & 34---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, criminal breach of trust, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the employee of the (complainant) company committed fraud and theft in sales and accounts department in connivance with the accused-respondent---Accused-respondent fraudulently got encashed the company's cheques of Rs. 1,78,9662/- in lieu of demand draft of Rs. 60,95,287/- but he did not pay---Record showed that there was hardly any probability or infirmity in the order of acquittal recorded by the Trial Court---Said order of acquittal was based on sound and cogent reasons, which did not warrant any interference---Appeal against acquittal was dismissed in circumstances.

Khawaja Muhammad Azeem for Appellant.

Malik Khushal Khan for Respondents.

Rahat Ehsan, DPG for the State.

2018 P Cr. L J 549

[Sindh]

Before Adnan-ul-Karim Memon, J

ARSHAD MEHMOOD and another---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No. 106 of 2017, decided on 21st July, 2017.

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

----Ss. 406, 420 & 489-F---Criminal Procedure Code (V of 1898), S. 249-A---Criminal breach of trust, cheating and dishonestly issuing cheque---Acquittal of accused at any stage---FIR was lodged against the applicants/accused under Ss. 406, 420 & 489-F, Penal Code, 1860---Trial Court framed the charge and proceeded to record evidence---Applicants, in the meanwhile, moved application under S. 249-A, Cr.P.C. before the Judicial Magistrate, which was dismissed---Applicants impugned the said order by filing revision petition, which was also dismissed---Validity---Record reflected that Trial Court had framed the charge in the month of February, 2016 and proceeded with recording evidence of the parties by examining complainant and a prosecution witness---Prosecution gave-up the evidence of three witnesses, however, only three prosecution witnesses were yet to be examined, including the Investigating Officer of the case---Applicants moved application under S. 249-A, Cr.P.C. but Judicial Magistrate, while dismissing the said application, noted that complainant had fully supported his version in his evidence---Stance taken by the applicants that complainant had executed affidavit regarding release of applicants under S. 249-A, Cr.P.C. was of no avail when complainant had deposed on oath and supported his version in evidence---Application was therefore, rightly rejected by the Trial Court---Circumstances established that no illegality or material irregularity was found in the impugned orders---Criminal miscellaneous application was dismissed in circumstances.

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

----Ss. 340(2) & 342---Criminal proceedings---Scope---Case was to be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S. 342, Cr.P.C. and under S. 340(2), Cr.P.C. if so desired and after hearing the arguments of both the parties.

The State through Advocate-General Sindh v. Raja Abdul Rehman 2005 SCMR 1544 and Sardar Majid Ali Khan v. The State 2012 PCr.LJ 76 rel.

Muhammad Nizar Tanoli for Applicants.

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

2018 P Cr. L J 561

[Sindh (Sukkur Bench)]

Before Omar Sial, J

ALLAH BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-136 of 2011, decided on 17th May, 2017.

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

----Ss. 302, & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Unwitnessed occurrence--- Benefit of doubt---Accused-appellant allegedly to be armed with Wahaloo and co-accused with hatchet along with two other co-accused assaulted on the son of the complainant, due to which he died on the spot---Ocular account was furnished by three prosecution witnesses including complainant---Statements of eye-witnesses were in complete contradiction to the testimony of the complainant---Said eye-witnesses deposed that they had not seen the incident---Complainant had stated that he left the eye-witnesses at the spot with the dead body and went to the police station to lodge FIR---Eye-witnesses stated that complainant had brought them to the police station where their signatures were obtained but its contents were not read over to them---Said eye-witnesses were not declared hostile by the prosecution---Recovery witnesses stated that nothing was recovered in their presence and that there thumb impressions were obtained on blank papers by the police---Said witnesses were declared hostile by the prosecution but their evidence cast dent in the prosecution case---During trial, complainant replaced the name of persons, who were left by him with the dead body at the time of lodging FIR---Time of the incident as reported in the FIR was 19.00 hours---Inquest report showed the time of incident as 17.00 hours---Complainant, in his testimony first cited 14.00 hours and then deposed that it was evening time when the incident took place---Prosecution witnesses including the complainant deposed that accused-appellant and co-accused gave multiple blows with a Wahaloo and a hatchet on the neck of the deceased---Postmortem report of the deceased showed only one incision on the neck of the deceased---Said exaggerated account of the witnesses and the complainant created doubt in the veracity of their allegations---Medical Officer in the postmortem report of the deceased concluded that the incision was caused either by a Wahaloo or an axe---Post-mortem report created doubt as to which accused, caused the fatal blow to the deceased---Admittedly, enmity between the parties existed regarding theft of buffaloes, which did not eradicate the possibility of a false involvement in the case---Blood-stained earth was collected by the Investigating Officer on 22.9.2001---Ostensible recoveries of the Wahaloo and hatchet were made on 11.10.2001---Chemical Report showed that the three items were sent to the Chemical Examiner on 6.12.2002, nearly a year later---Circumstances established that prosecution had failed to prove its case against the accused-appellant beyond reasonable doubt, benefit of which would go to the accused-appellant---Accused-appellant was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Blood-stained earth did not match the blood of victim---Effect---Blood in the earth and on the crime weapons did not match with the deceased---Evidentiary value of the said report was corroded.

Qurban Ali Malano for Appellant.

Abdul Rehman Kolachi, A.P.G. for Respondent.

2018 P Cr. L J 586

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

ZAHOOR AHMED alias ABDUL KARIM and another---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No. S-449 of 2017, decided on 21st June, 2017.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Act of terrorism---Scope---Transfer of case from ordinary criminal court to the Anti-Terrorism Court was challenged on the ground that after eight years, Trial Court had passed the order for resubmitting the final report before the Anti-Terrorism Court and that prosecution case was fit for trial before the ordinary criminal court---Validity---Prosecution case was that encounter took place between accused persons and the police wherein one police Head Constable died due to firing by the accused persons---Act of firing at police, when they were discharging their duties, was actually an "act of terrorism" and such persons were required to be tried by the Anti-Terrorism Court only---Offence, therefore, fell in the ambit of Third Schedule of Anti-Terrorism Act, 1997, which was, triable by Anti-Terrorism Court---Criminal Miscellaneous Application was dismissed accordingly.

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

----Ss. 302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Anti-Terrorism Court, jurisdiction of---Involvement of accused in an act of serious violence against member of the police force, armed forces, civil armed forces, or a public servant was an act of terrorism and would be triable by the Anti-Terrorism Court.

Qaiser Baloch and 3 others v. The State 2013 PCr.LJ 1259 rel.

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

----S. 23---Case triable by Anti-Terrorism Court---Jurisdiction of Anti-Terrorism Court---Determination---Whether a particular case did or did not fall within purview of its jurisdiction laid with the Presiding Judge of Anti-Terrorism Court---If accused considered that the case was not triable by the Anti-Terrorism Court on account of personal enmity or any other reasons, then he had an opportunity to agitate his point of view before the said court.

Mehram Ali's case PLD 1998 SC 1445 rel.

Manzoor Hussain Ansari for Applicants.

2018 P Cr. L J 600

[Sindh]

Before Aftab Ahmed Gorar, J

SHERAZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 978 of 2017, decided on 31st October, 2017.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51---Possession of narcotic drugs---Bail, refusal of---Accused was arrested red-handed along with charas (narcotic) while he was driving a vehicle---Person on driving seat of the vehicle could be held responsible for transportation of the narcotics having knowledge of the same because possession could be joint one with two or more persons---Discretion under S. 497, Cr.P.C. might not be exercised liberally in case of huge recovery of narcotics---Bail could not be granted to an accused person charged with an offence under Control of Narcotic Substances Act, 1997 or under any other law relating to narcotics where the offence was punishable with death---High Court declined grant of bail.

Socha Gul v. The State 2015 SCMR 1077 and Kashif Amir v. The State PLD 2010 SC 1052 rel.

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

----Preamble---Control of Narcotic Substances Act, 1997 had consolidated and amended the law relating to narcotic drugs and psychotropic substances---Legislation controlled and prohibited the prosecution, processing and trafficking of said substances and laid progressive punishments for narcotic offences and provided for constitution of Special Courts having exclusive jurisdiction to try narcotic offences.

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

----S. 497---Bail---Tentative assessment---Scope---Deeper appreciation of record at bail stage could not be gone into but only it was to be seen as to whether the accused was prima facie connected with the commission of offence.

Aslam Ahmed Kumbar for Applicant.

Zahoor Shah, Deputy Prosecutor-General, Sindh for the State.

2018 P Cr. L J 610

[Sindh]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

JUNAID ASAD KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Accountability Appeal No. 22 of 2017, decided on 15th December, 2017.

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

----S. 426---National Accountability Ordinance (XVIII of 1999), S. 9---Suspension of sentence---Corruption and corrupt practices---Appreciation of evidence---Accused persons allegedly failed to repay financial facility (loan) advanced by a Bank and were convicted by Trial Court---Main emphasis of counsel for the Bank was recovery of amount for which execution application was pending---Accused persons did not challenge the judgment and decree passed by Trial Court in civil suit and contended that they would not object with regard to execution application and would like to participate in auction proceedings---High Court observed that executing court would proceed and ensure that outstanding amount was recovered---Prima facie, consequence of willful default in existing position left a room open to examine the plea raised by counsel for accused persons which might bring its consequences upon legality of awarded conviction, therefore it would meet the ends of justice to suspend the conviction (release the accused persons on bail) pending determination of such question because there was no compensation for a conviction which later was set aside---Order accordingly.

Syed Mushahid Shah's case 2017 SCMR 1218; Alamdar Hussain's case PLD 2017 Lah. 479; State v. Muhammad Asif Saigol PLD 2016 SC 620; Bank of Punjab v. Messrs AMZ Ventures Ltd. 2013 CLD 2033 and Khan Asfandyar Wali's case PLD 2001 SC 607 ref.

(b) Administration of justice---

---Criminal trial---Justice would always tilt in favour of accused, if there were two probabilities one favouring to accused and one to prosecution.

Mahmood A. Qureshi and Khaleeq Ahmed for Appellants.

Ms. Naheed A. Shahid for Bank Islami Pakistan Ltd. along with Legal Officer Mukhtar Ahmed Shah.

2018 P Cr. L J 629

[Sindh (Sukkur Bench)]

Before Omar Sial, J

SOOMER and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-6, S-16 and S-21 of 2016, decided on 31st May, 2017.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Common intention---Proof---Prosecution case was that accused-appellants armed with deadly weapons, made firing upon the son and nephew of complainant, due to which both died---Motive behind the occurrence was old enmity between the parties---Record showed that out of nine, one accused had allegedly instigated the other accused, two accused were alleged to have fired at the deceased persons, other accused persons were just present there---No evidence was led in trial to establish common intention of the accused---Circumstances established that common intention of the accused persons for committing the offence was not proved.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellants armed with deadly weapons made firing upon the son and nephew of complainant, due to which son of the complainant died on the spot while his nephew was injured, who died later on---Ocular account was furnished by two witnesses including complainant---Statements of said witnesses were contradicted with each other---If the version of complainant was to be believed, that would negate the version of other witness of ocular account---If the version of eye-witness was to be believed that would mean that the complainant was dishonest---In either case, the casualty was the credibility of both the witnesses---Prosecution witnesses deposed that no medical treatment was provided to the injured at the District Hospital and injured was referred to another hospital and the Medical Officer of the said hospital deposed that he recovered two pellets from the cranial cavity of the injured---Memo of injuries of the injured and memo of examination of the dead body of deceased did not reveal that the two had sustained fire arm injuries---Prosecution cited two persons as witnesses of seven different memos but examined one in the trial, which showed that he was actually summoned on each occasion to come and witness the memos prepared---Circumstances established that prosecution failed to establish its case beyond reasonable doubt, benefit of which would resolve in favour of accused-appellants---Accused-appellants were acquitted by setting aside conviction and sentence recorded by Trial Court.

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

----S. 161---Examination of witness by Police---Delay in recording statement of witness--- Effect--- Police recorded statements of prosecution witnesses after a delay of twenty three days---Said inordinate delay created doubts regarding the accuracy and credibility of said witnesses.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Motive not proved---Motive for the occurrence as alleged by the complainant was that he had a matrimonial dispute with a family member of the accused party---Said person had abducted the son of the complainant and was absconding in that case and accused party had committed two murders in retaliation of that case---Record showed that no effort was made by the prosecution to prove the said motive---Accused, on the face of it, had no nexus with the abduction case and motive could not be proved---Accused persons were acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Pellets, ostensibly recovered from the body of deceased were handed over to the police by the concerned Medical Officer, were not seized under a memo nor were produced in trial---No recovery of any weapon was ever effected---Cartridges ostensibly recovered from the place of incident were not sent to the Ballistic Examiner for determination as to from what type of weapon same were discharged---Blood-stained earth collected by the Investigating Officer on 25.11.2009 was not sent to the Chemical Examiner till 18.1.2010---Where and how said article (blood stained earth) was secured, remained unexplained, which cast serious doubt about the veracity of prosecution case.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Blood stained earth did not match with the blood of victim---Effect---Blood stained earth without matching the same with the blood of the injured or deceased was absolutely meaningless.

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

----Ss. 302, 324, 34 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Appreciation of evidence---Site sketch was prepared at belated stage---Effect---Site sketch was prepared after five years of the occurrence---Prosecution witness identified the place to tapedar and told him as to where the parties were placed---Such site sketch did not add any weight to the prosecution case.

Ghulam Shabbir Dayo for Appellants Nos. 1 to 3 (in Criminal Appeal No. 6 of 2016).

Jamshed Ahmed Faiz for Appellants Nos. 1 to 4 (in Criminal Appeal No. 16 of 2016).

Bakhshan Khan Mahar for Appellants Nos. 1 and 2 (in Criminal Appeal No. 21 of 2016).

Zulfiqar Ali Jatoi, D.P.G. for the State (in Criminal Appeals Nos. 6, 16 and 21 of 2016).

2018 P Cr. L J 650

[Sindh]

Before Mohammed Karim Khan Agha, J

Mst. SHAMIM KHATOON---Applicant

Versus

Syed SHAFIQUE AHMED and 4 others---Respondents

Criminal Misc. Application No. 149 of 2016, decided on 19th June, 2017.

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

----S. 498---Pre-arrest bail, grant of---Principle---Pre-arrest bail could not be granted unless there was mala fide on the part of the complainant or the police, who had lodged the FIR with ulterior motives in order to humiliate the accused.

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

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Petition for cancellation of bail, dismissal of---Accused-respondents were charged for the murder of daughter of the complainant---Record showed that originally the case was disposed of by the police in "C" class on account of lack of evidence---Two month's delay had occurred in lodging the FIR for which no plausible explanation had been given---Complainant had shown suspicion in the FIR against the accused-respondents without any evidence---No motive was alleged against the accused-respondents for the murder---Circumstances and facts of the case showed that there were shades of mala fide on the part of the complainant---Sufficient material was not on record to connect the accused-respondents to the commission of offence---Complainant was delaying the trial while accused-respondents were regularly attending the Court---Accused-respondents had not misused the concession of bail---No exceptional legal requirements, were made out to cancel bail granted by competent court---Petition for cancellation of bail was dismissed in circumstances.

Ahsan Ali and another v. The State 2001 PCr.LJ 500; Jan Muhammad v. Abdul Latif and 3 others 2003 MLD 72; Hadayat Ali v. Muhammad Shahbaz 2002 MLD 83; Said Akbar and another v. Gul Akbar and another 1996 SCMR 931 and Qadir Bakhsh v. Allah Wasayo and others 2008 SCMR 182 ref.

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

----S. 497---Bail---Plea of alibi---Scope---Bail could be granted on the plea of alibi.

Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97 rel.

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

----S. 497(5)--- Bail, cancellation of--- Principle--- Once the bail was granted, strong and exceptional circumstances would be required for the cancellation of bail.

Tariq Bashir v. State PLD 1995 SC 34 and Shahid Imran v. State 2011 SCMR 1614 rel.

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

----S. 498--- Pre-arrest bail--- Seriousness of offence--- Effect---Seriousness of the offence did not exclude the ability for the court for granting pre-arrest bail in appropriate cases.

Amir Jamil for Applicant.

Munir Ahmed for Respondents Nos. 1 to 4.

Zahoor Shah, A.P.-G. for Respondent No.5/State.

2018 P Cr. L J 669

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

KARAMAT ARAIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-119 of 2016, decided on 26th May, 2017.

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

----Ss. 379, 462-B, 462-F & 511--Theft, tampering with petroleum pipelines, damaging or destructing the transmission or transportation line, attempting to commit offence with imprisonment for life or a shorter term---Appreciation of evidence---Recovery of articles---Prosecution case was that accused-appellants along with co-accused persons were found in installing a clip over the pipeline of a Refinery Company in order to commit theft of oil---First Information Report showed that at the time of arrest of accused-appellants, they were putting a clip on pipeline after digging a ditch over the pipeline---Record showed that no tools like shovel, spade, scoop, trowel or any other similar tool allegedly used for digging the ditch were recovered from the possession of accused-appellants or found at the place of incident---Police did not find empty barrels or any other container for storing stolen oil---No vehicle was shown to be seen by police for transporting the stolen oil---Only the recovery of a clip and a screw wrench, in such a situation, was not sufficient to connect the accused-appellants with the commission of the alleged offence---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 379, 462-B, 462-F & 511---Theft, tampering with petroleum pipelines, damaging or destructing the transmission or transportation line, attempting to commit offence with imprisonment for life or a shorter term--Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellants along with co-accused persons were found in installing a clip over the pipeline of a Refinery Company in order to commit theft of oil---Ocular account was furnished by witnesses including the complainant---Complainant revealed during cross-examination that he prepared the memo of arrest and recovery in the headlight of police mobile by placing the papers on the pad---Witness deposed that the complainant prepared memo by putting on the bonnet of police mobile---Complainant stated that he had seen the accused persons at a distance of 15/20 paces while witness stated that he had seen the accused persons from the distance of 200 paces---Complainant disclosed that the accused persons ran away in different directions while witnesses stated that accused persons ran away in the western direction---Complainant had stated that he did not perform patrolling at any other place while the witness said that they went at different places during patrolling before reaching the place of incident---Circumstances established material contradictions in the evidence of prosecution witnesses, which created doubt about the veracity of prosecution case---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

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

----Ss. 379, 462-B, 462-F & 511---Theft, tampering with petroleum pipelines, damaging or destructing the transmission or transportation line, attempting to commit offence with imprisonment for life or a shorter term--Appreciation of evidence---Defence plea---Reliance---Prosecution case was that accused-appellants along with co-accused persons were found in installing a clip over the pipeline of a Refinery Company in order to commit theft of oil---Accused-appellant produced some documents in defence, which showed that the family of the accused-appellants had some dispute with the police---Said family members of the accused-appellants had complained against some of the Police Officers, and even FIR was lodged against the police officials under the direction of court in respect of illegal detention of accused-appellant---One could not believe the happening of the incident as mentioned in the FIR, in circumstances---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Riaz Hussain Khoso for Appellants.

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

2018 P Cr. L J 742

[Sindh (Sukkur Bench)]

Before Omar Sial, J

PIR BUX and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-14 of 2016, decided on 16th May, 2017.

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

----Ss. 334, 337-F(i), 337-U, 337-H(ii), 147, 148 & 149--Itlaf-i-udw, damiyah, itlaf of teeth, act endangering human life or the personal safety, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that while complainant was cultivating his land, accused-appellant appeared along with four others and started beating him with Lathies, kicks, fists and butt blows with the weapons they carried---Ocular account was furnished by three witnesses including complainant---Complainant deposed that he was saved from beating by an eye-witness---Said eye-witness deposed that complainant was saved from beating by three witnesses---Another eye-witness deposed that a lady had come to the site with the Holy Quran and upon her intervention, complainant was saved from beating---Circumstances showed that the witnesses could not agree upon a basic fact, which cast suspicion as to whether the ostensible eye-witnesses were even present at the site---Complainant had deposed that the accused made one or two aerial fires but police recovered three empties from the site---Eyewitness deposed that accused made five or six fires whereas the other eyewitness deposed that accused made "30/50/100" fires---Recovery of the empties as alleged by the complainant was not proved in trial---Exaggerations in the statements of the witnesses shed doubt on their credibility---Memo of injuries prepared at the Police Station cited one witness, who deposed that injured did not show his broken tooth---Complainant had alleged that incident took place in the land owned by him---No evidence to that effect was produced by the complainant---Contrarily, eyewitness deposed that the complainant did not own any land in the village where the incident took place---No recovery of any nature was made by the police---No evidence was produced by the prosecution, which corroborated the account of the complainant---Record showed that complainant was named as accused in an FIR lodged earlier by the accused party---In fact when complainant reached the police station to lodge his FIR, he was arrested by the police in the earlier FIR---False implication of the accused-appellant in such a situation could not be ruled out---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 334, 337-F(i), 337-U, 337-H(2), 147, 148 & 149--Itlaf-i-udw, damiyah, itlaf of teeth, act endangering human life or the personal safety, rioting, rioting armed with deadly weapons, unlawful assembly--Appreciation of evidence---Benefit of doubt---Medical evidence---Complainant's tooth was broken and little finger swollen in the incident---Ostensible broken tooth, allegedly handed over to the police was not produced in trial---No medical certificate about the injuries sustained by the complainant was produced during trial---Explanation furnished by the complainant for the absence of medical certificate was that he went to the hospital but there was no doctor available as it was Eid---Medical Officer deposed that the complainant had appeared before him in the hospital with the whole tooth in his hand---Complainant was hospitalized for two days but he did not appear before the Dental Surgeon---Complainant did not produce final medical report during trial---Casualty in question, could not be proved by prosecution in circumstances.

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

----Ss. 334, 337-F(i), 337-U, 337-H(2), 147, 148 & 149--Itlaf-i-udw, damiyah, itlaf of teeth, act endangering human life or the personal safety, rioting, rioting armed with deadly weapons, unlawful assembly--Appreciation of evidence---Motive not proved---Complainant deposed that the dispute, which led to the brawl, was over rotation of water to lands---Complainant, in cross-examination, had deposed that on the day of occurrence, it was not his turn of water nor it was the turn of land of the accused---Neither of the parties having turn of rotation of water on the day of incident, motive ascribed as dispute over rotation of water to lands was not established---Motive ascribed to the incident went unproved, in circumstances.

Sadaruddin Buriro for Appellants.

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

2018 P Cr. L J 750

[Sindh (Sukkur Bench)]

Before Omar Sial, J

IMTIAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-161 of 2009, decided on 3rd May, 2017.

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

----Ss. 302, 201, 404 & 34--Qatl-i-amd, causing disappearance of evidence of offence, dishonest misappropriation of property possessed by deceased person at the time of his death, common intention---Appreciation of evidence---Recovery---Scope---Recovered motorcycle of accused was not produced at trial---No description of the pistol (alleged weapon of offence) was given and the same was not sent for ballistic examination to determine as to whether said pistol was the one which was used for the offence---Recovered pistol though was allegedly lying in a cotton field for ten days but the barrel of the same smelled of gun powder---No blood stains were found on the recovered shawl of the accused which allegedly he was wearing at the time of occurrence---Circumstances established that recoveries had been foisted on the accused.

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

----Ss. 302, 201, 404 & 34--Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, dishonest misappropriation of property possessed by deceased person at the time of his death, common intention---Appreciation of evidence---Confessional statement---Reliance---Accused was charged for the murder and convicted on the basis of his confessional statement---Record showed that Magistrate did very little to comply with the requirements for recording confession in letter and spirit of relevant law---Magistrate did not introduce himself to the accused for recording his confession till the last question put to the accused---Accused was not assured by the Magistrate that he would not be handed over to the police after his confession---Magistrate handed over the accused to the police who had brought the accused for the purpose of taking him for judicial remand---Magistrate did not ask the accused about his age---Accused was of seventeen years of age at the time of incident---Magistrate recorded statements of two witnesses under S.164, Cr.P.C., which were the exact copy of the statements under S.161, Cr.P.C. recorded earlier---Circumstances established that the manner in which the alleged confession was recorded corroded its evidentiary value and could not be relied upon to convict the accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Azeem Khan v. The State 2016 SCMR 274 rel.

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

----Ss. 302, 201, 404 & 34--Qatl-i-amd, causing disappearance of evidence of offence, dishonest misappropriation of property possessed by deceased person at the time of his death, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder---FIR showed that it was a blind murder---Witnesses, who were from the neighborhood, did not identify the accused---Accused was not named in the FIR---No identification parade was held---Complainant refused to identify the accused during trial---Evidence showed that the accused was in police custody for at least seven to eight days before his arrest---Repeated protest of complainant was on record to the effect that police had not arrested the actual culprits---Recovered motorcycle was not produced at trial---No entries were produced by the Investigating Officer to record his departure from or arrival at the police station in connection with the arrest of the accused---Circumstances established that prosecution had failed to prove its case against the accused beyond reasonable 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.

Sher Muhammad Shar for Appellant.

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

2018 P Cr. L J 771

[Sindh]

Before Syed Muhammad Farooq Shah, J

TARIQ JAVED---Applicant

Versus

HOM PURKASH and 3 others---Respondents

Criminal Miscellaneous Applications Nos. 260 to 273 of 2010, decided on 24th May, 2017.

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

----Ss. 203, 200 & 190---Dismissal of complaint---Trial Court dismissed the complaint mainly on the ground that the photocopy of Notification in the shape of true copy was inadmissible in evidence---Said orders were maintained by the revisional court---Validity---Admittedly, the complaint was dismissed at the very inception without recording the statement of the complainant under S. 200, Cr.P.C., which stipulated that a Magistrate taking cognizance of the offence on complaint should at once examine the complainant upon oath---Substance of the examination should be reduced to writing and should be signed by the complainant and also by the Magistrate---Section 203, Cr.P.C. empowered the Magistrate before whom a complaint was made or to whom it was transferred or sent, may dismiss the same after considering the statement on oath of the complainant and the result of investigation---Magistrate had not adopted the proper mechanism provided by the provisions of Criminal Procedure Code, 1898 while dismissing the complaint---Magistrate, on receiving a complaint, would take the cognizance thereof under S. 190(a), Cr.P.C. and thereafter it was incumbent upon him to examine the complainant under S. 200, Cr.P.C.---Inquiry or investigation thereafter, would be ordered to be conducted under S. 202, Cr.P.C.---In the present case, original Notification in favour of the complainant which had authorized the complainant to file complaint, was not annexed---Trial Court could have summoned the original record or direct the complainant to produce the original Notification instead of dismissing the complaint---Notification annexed with the complaint was not objected to by the other side nor was challenged at the preliminary stage of the complaint---Objection as to the admissibility of document was to be raised during its production by the complainant---Statement of the complainant having not been recorded, therefore it could not be said that complainant did not possess the original document to produce at the time of recording his statement---Circumstances established that impugned orders of the Trial Court and revisional court were not tenable in law, case was remanded to the Magistrate for entertaining the complaint in accordance with law.

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

----S. 203---Dismissal of complaint---Scope---Dismissal of a complaint under S. 203 Cr. P. C. could not be equated with the acquittal recorded after/during the trial.

Mst. Robina Rashid v. Farrukh Amin and another PLD 2011 FSC 121 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---High Court was vested with the authority under S. 561-A, Cr.P.C. to exercise the said powers to secure the ends of justice, if non-interference with the impugned order would perpetuate injustice.

Hidayatullah and others v. The State 2006 SCMR 1920 and Engineer Bashir Ahmed v. Senior Superintendent of Police, Islamabad and others 2002 SCMR 239 rel.

Sameer Ghazanfar for Applicant.

Mudassar Ahmed for Respondent.

Other Respondents in person.

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

2018 P Cr. L J 820

[Sindh]

Before Khadim Hussain M. Shaikh, J

AMAN ULLAH---Applicant

Versus

IST ADDITIONAL DISTRICT AND SESSIONS JUDGE and another---Respondents

Criminal Miscellaneous Application No. S-273 of 2015, decided on 3rd February, 2017.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss. 396, 397 & 34---Dacoity, robbery or dacoity, with attempt to cause death or grievous hurt, common intention---Forfeiture of surety bond and imposition of penalty---Applicant stood surety for accused persons who were released on bail in the sum of Rs. 3,00,000 each---Both accused absconded after grant of bail and were declared as proclaimed offenders---Accused died during trial so proceedings against him stood abated---Applicant failed to produce the co-accused in the court, the surety was forfeited---Trial Court, on the application by the applicant/surety reduced surety amount from Rs. 3,00,000 to 1,50,000---Validity---Record showed that co-accused was granted bail by the Trial Court subject to his furnishing surety in the sum of Rs. 3,00,000---Applicant had stood surety for the said co-accused, who jumped over the bail and remained absent from the court---On accused's continuously remaining absent from the court, surety of the applicant was forfeited---Applicant/surety had failed to discharge his liability in producing the co-accused in court despite sufficient latitude given to him---Trial Court had already taken lenient view by returning the surety of accused and reducing the penalty of the surety amount from Rs. 3,00,000 to Rs. 1,50,000 relating to the co-accused, could not be termed to be on the higher side---Circumstances established that there was no illegality in the impugned order passed by the Trial Court, which did not call for any interference---Application was dismissed in circumstances.

Muhammad Shah and another v. The State 1995 PCr.LJ 1254 and Abdul Rashid v. the State 2007 PCr.LJ 673 ref.

Muhammad Nasiruddin Khan for Applicant.

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

2018 P Cr. L J 829

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Khadim Hussain Tunio, JJ

GHULAM SHABIR SHAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-15 of 2016, decided on 12th December, 2017.

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

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Complainant (police) allegedly apprehended accused and seized from his hand the polythene bag containing four pieces of Charas weighing two kilograms; same was sealed at the spot and memo of arrest and recovery was prepared in presence of witnesses, and then the FIR was lodged at the Police Station---Investigating Officer prepared memo of site inspection, recorded statement of witnesses under S. 161, Cr.P.C. and sent the case property to Chemical Examiner for analysis---Report of Chemical Examiner showed that parcel was found in three seals packets containing four brown coloured pieces of Charas---Case property was also produced before Trial Court during evidence of prosecution witnesses---All the three prosecution witnesses implicated accused being apprehended at specific day, time and place and being in possession of Charas---None of the prosecution witnesses had any enmity with the accused nor was it ever suggested---Credibility of recovery of Charas was attached with memo of recovery even if the sealed parcel was stated to have been signed by the witness at Police Station---Defence plea of accused that accused was arrested seven days before the occurrence and upon non-fulfilment of demand of illegal gratification he was implicated falsely was of no force because neither the accused nor any of his relatives made any complaint to Police nor any application was moved before the court regarding his illegal detention and the person who allegedly arrested accused did not belong to alleged wing of Police---No misreading, non-appreciation of evidence, illegality or factual infirmity existed in the impugned judgment--- Appeal was dismissed accordingly.

Shahbaz Ali Brohi for Appellant.

Khadim Hussain Khoonharo, A.P.-G. for the State.

2018 P Cr. L J 858

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

ALI GUL ABRO and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-140 and S-141 of 2010, decided on 2nd June, 2017.

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

----Ss. 302, 504 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Dying declaration---Scope---First Information Report was considered as dying declaration by the Trial Court against the accused-appellants and they were sentenced for life imprisonment---Validity---Dying declaration was to be made by the deceased with the clarity of mind that he was going to die---In the present case, FIR was written by the police in a routine manner, the deceased was in his senses and he had signed the FIR himself after verifying its contents---Said FIR did not fulfill the requirements of a "dying declaration"--- Record showed that deceased himself had gone to the police station and lodged FIR, deceased had received injury on non-vital part of the body, as such he was not under the expectation of death at the time of lodging FIR---FIR, in circumstances, could not be considered as dying declaration.

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

----Ss. 302, 504 & 34---Criminal Procedure Code (V of 1898), Ss. 232 & 535---Qatl-i-amd, intentional insult with intent to provoke breach of the peace, common intention---Appreciation of evidence---Omission to prepare charge---Effect---Prosecution case was that accused armed with DBBL gun and co-accused with SBBL gun came at the spot and accused fired from his gun upon the complainant, which hit him on his right knee---Injured himself reported the matter to the police and police sent the complainant to local hospital from where he was referred to other hospital for treatment---Epilogue of the incident culminated on the death of the complainant on 2.9.2004---Record showed that first charge under S.324, Penal Code, 1860 was framed on 15.12.2005---Statements of two prosecution witnesses were recorded on 18.2.2006 and 7.6.2006 respectively---Amended charge under S. 302, Penal Code, 1860 was framed on 17.1.2007---Both the charges were framed long after the death of the complainant/deceased---Deposition of two witnesses was recorded on the basis of previous charge when the deceased had already expired, as such the previous charge would not cover the deposition so recorded---Amended charge was framed afterward, which indicated that at the time of recording the deposition of said two witnesses, there was no charge of murder at all---Fact of the death of the complainant had come in the deposition of the said witnesses, but it would make no difference---Attending circumstances suggested that it was a trial/conviction without charge, and showed that opportunity of a fair trial was not provided to the accused-appellants---Circumstances established that accused-appellants were forced not only to face the trial without charge but also to face a conviction followed a sentence of life imprisonment---Case was therefore, remanded by setting aside conviction and sentence with the direction to frame the charge afresh and proceed with de novo trial.

Saeedullah v. Asfandyar and another 2017 PCr.LJ Note 5 rel.

Asif Ali Abdul Razzak Soomro and Muhammad Aslam Jatoi for Appellants (in Criminal Appeal No. S-140 of 2010).

Ali Nawaz Ghanghro for Appellants (in Criminal Appeal No.S-141 of 2010).

Faiz Muhammad Larik for the Complainant.

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

2018 P Cr. L J 883

[Sindh]

Before Adnan-ul-Karim Memon, J

NADEEM ANSARI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1020 of 2017, decided on 20th July, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), S. 489-F--- Dishonour of cheque---Bail, grant of---Further inquiry---Complainant had alleged that accused persons assured to return the amount (given for business) with certain profit in lieu of which they handed over thirty five post-dated cheques which were bounced due to non-availability of funds---Transaction between complainant and accused persons was business transaction---Charge sheet had been submitted and accused persons were not required for investigation---Accused persons without prejudice to their right were ready to furnish security equivalent to amount of cheques---Alleged offence did not fall within prohibitory clause of S. 497, Cr.P.C.---Complainant had not given description of alleged business as to how when and by what process amount was paid to the accused persons nor he disclosed exact purpose for giving sixty lac of rupees---Accused persons were behind the bars for one year---Case against accused was based on documentary evidence which was yet to be determined by Trial Court---Case of accused required further inquiry in view of tentative assessment of record---Bail was granted accordingly.

Muhammad Sarfraz v. The State 2014 SCMR 1032; Saeed Ahmed v. The State 1995 SCMR 170; Muhammad Nawaz v. The State and others 2011 MLD 299; Arif Iqbal v. The State 2016 PCr.LJ Note 57; Asad Ali v. The State 2011 PCr.LJ 752 and Shameel Ahmed v. The State 2000 SCMR 174 ref.

Muhammad Sarfraz v. The State 2014 SCMR 1032 and Saeed Ahmed v. The State 1995 SCMR 170 rel.

Nasir Ahmed and S. Ali Azam for Applicants.

Syed Zahoor Shah, D.P.-G. along with IO SIP Mehmoob Illahi for the State.

Muhammad Imran Ameer for the Complainant.

2018 P Cr. L J 909

[Sindh (Sukkur Bench)]

Before Rasheed Ahmed Soomro, J

SUDHIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-174 of 2009, decided on 28th April, 2017.

Penal Code (XLV of 1860)---

----Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Complainant being eye-witness had taken somersault in his cross-examination by deposing that he did not witness the incident; his nephew came and disclosed to him that accused had fired at the injured and escaped---Complainant in the FIR had disclosed that co-accused caused (lathi) stick blows to him but in his evidence he stated that no other person accompanied the accused at the time of incident---Complainant had deposed that injured was at the distance of about one mile when accused fired shot at her which was contradicted by medical evidence which disclosed distance of fire was about six feet---Complainant in FIR had disclosed that his brother was also with them but in evidence he did not state so---Injured also deposed that his uncle was not with her---Mashir in his cross-examination had stated that police obtained his signatures on the day of incident; contents of the said paper were not read over to him---Prosecution had not produced second mashir to support the version of Investigating Officer---Investigating Officer visited place of incident after two months of the lodgment of FIR and recorded the statements of prosecution witnesses---Complainant had lodged the FIR with a delay of more than nine months---If simple circumstance had created reasonable doubt about guilt of accused, he would be entitled to such benefit not as a matter of grace and concession but as a matter of right---Appeal against conviction was allowed accordingly.

Tarique Pervaz v. The State 1995 SCMR 1345 rel.

Irfan Ahmed Baloach for Appellant.

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

2018 P Cr. L J 943

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon, J

MUKHTIAR alias MUKHO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-111 of 2016, decided on 6th December, 2016.

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

----S. 340(1)---Penal Code (XLV of 1860), Ss. 324, 353, 399 & 402---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation to commit dacoity, assembling for the purpose of committing dacoity, accused to be defended by pleader---Accused was unrepresented---Effect---Prosecution case was that complainant (Police Official) received spy information that accused persons were present on link road of the city with intent to commit dacoity---Complainant along with other police personnel reached at the place pointed out and after exchange of ten minutes' firing, accused-appellant was arrested on the spot with Kalashnikov, while the remaining accused persons fled away---Admittedly, accused-appellant remained unrepresented throughout---Trial Court examined two prosecution witnesses but only one question was put by the accused to the complainant of his innocence---No opportunity of cross-examination of recovery witness was provided to the accused-appellant---Testing the veracity and credibility of the witness was a legal right of the accused-appellant which could be achieved through proper cross-examination by the counsel---Circumstances established that, in the present case, Trial Court had not adopted the proper procedure in concluding the trial---Appeal was allowed by setting aside the judgment and case was remanded to the Trial Court for fresh decision after providing the accused an opportunity of cross-examination to the witnesses through counsel.

Syed Saeed Muhammad v. State 1993 550 ref.

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

----Art. 133--- Cross-examination---- Cross-examination by accused himself could not be a substitute of cross-examination by counsel.

Ubadullah Ghoto for Appellant.

2018 P Cr. L J 959

[Sindh]

Before Salahuddin Panhwar and Muhammad Saleem Jesser, JJ

SUNEIL---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.A. Nos. 219 and 220 of 2016, decided on 10th April, 2017.

(a) Criminal trial---

----Sentence--- Quantum of--- Administration of criminal justice---Lenient view---Object and scope---Purpose of sentence was to have a balance in the society---Punishment to the accused was awarded on the concept of retribution, reformation or deterrence so as to bring peace---Such goal could only be achieved either by keeping evils away (criminals inside jail) or strengthening the society by reforming the guilty---Law itself had categorized the offences, punishment whereof, with phrase 'not less than' while there were other which were with phrase 'may extend up-to'---Such difference itself was indicative that the courts had to appreciate certain circumstances before setting quantum of punishment; in the later case, which appeared to be dealing with those offences, the guilty whereof might be given an opportunity of reformation by awarding less punishment which how low-so-ever, would be legal---Concept of reformation, however, should be given much weight because sentence did not punish the guilty only but whole of his family/dependents also---Reformed person would not only be a better brick for society but might be helpful for the future by properly raising his dependents.

(b) Criminal trial---

----Sentence---Quantum of---Reduction in sentence---Scope---Plea of reduction in sentence, however shall not be available to hardened criminals, guilty of serious offences.

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

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Act of terrorism, making or keeping explosive with intend to endanger life or property, possessing unlicensed arms---Appreciation of evidence---Sentence, reduction in---Prosecution case was that accused-appellant was arrested during the night with the allegation that he was possessing pistol and riffle grenade---Accused-appellant contended that he would not press the appeal if the Court considered quantum of sentence, awarded to the accused-appellant---Record showed that S. 23(1)(a) of Sindh Arms Act, 2013 was, prima facie, not made out as recovery from possession of the accused-appellant fell within the meaning of S. 24 of Sindh Arms Act, 2013---Said fact was not disputed by the prosecution when confronted---Prosecution failed to prove that alleged recovered articles were either used prior to alleged date of offence nor it was established that accused-appellant intended to use the same at subsequent date---Prosecution though established recovery but never established that such recovery was in fact an "act of terrorism" as the object, design and purpose behind the said offence was to be established so as to justify the conviction under S. 7 of the Anti-Terrorism Act, 1997---Prosecution was under obligation to first establish object for bringing the act of possessing explosive to be one within meaning of second part of S. 6(2)(ee) of Anti-Terrorism Act, 1997---In absence of such situation, the sentences under S. 7(i)(ff) would not be legally justified particularly when accused-appellant was convicted independently for such offence under Explosive Substances Act, 1908 and under the Sindh Arms Act, 2013---Conviction awarded against the accused-appellant under S. 7(i)(ff) of Anti-Terrorism Act, 1997 was set aside in circumstances---Record showed that accused-appellant was sentenced for fourteen years for the offence punishable under S. 5 of Explosive Substances Act, 1908, which itself provided as 'be punishable with imprisonment for a term which may extend to fourteen years'; in such a situation, it was obligatory upon the Trial Court to have appreciated the attending circumstances also while awarding maximum sentence which, prima facie, was not done---Accused-appellant had pleaded himself to be first offender and claimed to be the only bread earner of the family, including five sisters---In the view of the phrase 'may extend up-to' sentence of fourteen years' in the statute, sentence was reduced to two years for offence under S. 5 of Explosive Substances Act, 1908 and the sentence of fourteen years for offence under S. 23(1)(a) of Sindh Arms Act, 2013 was converted to one under S. 24 of the Sindh Arms Act, 2013 and was reduced to two years---Appeal was disposed of accordingly.

Kashif Ali v. Judge, ATA Court No. II PLD 2016 SC 951 rel.

Nadeem Ahmed Azar for Appellant.

2018 P Cr. L J 971

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

MEVO---Applicant

Versus

SHABEER and 4 others---Respondents

Criminal Transfer Application No. S-53 of 2017, decided on 22nd May, 2017.

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

----S. 526---Application for transfer of case---Case was sought to be transferred to another District on the grounds that Trial Court, in a very harsh manner, granted bail to the accused persons who were notorious criminals and involved in dozens of the cases of robbery and dacoity and they were habitual robbers---Applicant was a poor person and belonged to hindu community, while accused issued threats when he had gone to court for evidence---Accused persons misused the concession of bail, threatened the complainant and his witnesses and interfered in the trial---Effect---Allegations made in the transfer application were vague and general in nature and such type of allegations could not be made the ground of transfer---Case was at initial stage---Parties were residents of the same district---No evidence was on record as to on which date and time and before whom, the accused persons had issued threats to the applicant---Vague and unfounded allegations against the Presiding Officer could not be made basis for transfer of case---Application was dismissed accordingly.

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

----S. 526---Application for transfer of case---High Court observed that while transferring the matter from one court to another, justice should not only be done but should appear to have been done---Presiding Officer was equally to be protected from frivolous transfer applications in order to achieve transparent even-handed justice so that litigants were not in a position to overpower the Presiding Officer, which could result tilting the scales of justice under fear and malignity---While exercising jurisdiction to transfer of case from sub-ordinate court, balance had to be struck in order to ensure that the cases were not transferred merely on the basis of suppositions, unfounded and conjectural apprehensions.

Shah Jehan v. Special Judge Anti-Corruption and others 1992 PCr.LJ 1982 rel.

2018 P Cr. L J 976

[Sindh]

Before Muhammad Iqbal Kalhoro and Khadim Hussain M. Shaikh, JJ

Syed ZAKI KAZMI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 38 of 2016, decided on 14th October, 2017.

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

----Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7--- Act of terrorism, causing explosion likely to endanger life and property, making or possessing explosives substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with his co-accused lobbed two hand grenades towards (Diplomatic) Consulate consecutively, one hit the gate and the other landed inside the Consulate---Record showed that complainant, other police officials and Rangers' personnel were present at the place of occurrence but they did not act to either apprehend the accused or try to chase them and did not fire a single shot on them---Such conduct of the police and other officials alleged to be present at the spot did not appeal to a prudent mind and gave the impression that they were not present there at the relevant time---No explanation was available as to how the accused escaped unscathed without any resistance or retaliation mounted by law enforcement agencies---Prosecution had not submitted any document (daily diary) to establish the duty of the said police officials and others at the Consulate on the day of incident---Investigating Officer had admitted that the police officials who had identified the accused at police station were posted at police station on the day of incident---If the said police officials were posted at police station then how their presence could be assumed at the place of incidence without any documentary evidence to show their deployment there---Prosecution had failed to lead confidence inspiring evidence to establish presence of the complainant and other witnesses at the spot on the relevant date---Prosecution produced a witness, who was estate agent/property dealer, appeared to be a chance witness and had not been able to satisfactorily prove his presence at the spot on the relevant date---Circumstances established that prosecution failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court.

2002 SCMR 1795; PLD 1981 SC 142; 1997 PCr.LJ 280; 1997 PCr.LJ 280; 1989 PCr.LJ 2227; 2011 SCMR 806; PLD 2002 SC 56; 2011 SCMR 646; 1985 SCMR 1834 and 2006 SCMR 1846 ref.

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

----Art. 22---Identification parade---Delay in conducting identification parade---Effect---Incident took place on 11.5.2011, whereas the identification parade of the accused took place on 12.12.2011---After such a long time, it was not humanly possible for said prosecution witnesses to remember the accused vividly---Record reflected that the accused was arrested on 20.11.2011 in another crime but his identification parade was held on 12.12.2011; during the said period, accused remained in police custody---Allegedly, he admitted his involvement in the commission of offence but he was got identified only after twenty two days of his arrest by a witness, who from the very first day of the incident was available with the prosecution---Identification by the witness of the accused, in circumstances, could not be relied upon.

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

----Art. 22---Identification parade---Evidentiary value---Witness had not given specific description of the accused in his statement under S. 161, Cr.P.C.---Evidence of the said witness in respect of number of dummies was also contradictory to the number mentioned in the memo of identification parade---Identification of the accused by the said witness could not be relied upon.

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

----Art. 22---Identification parade---Identification parade at police station---Evidentiary value---Identification parade of accused at police station by police officials was inadmissible in law.

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

----S. 342---Statement of accused under S. 342, Cr.P.C.---Scope---Import and scope of S. 342, Cr.P.C. was that every incriminating piece of evidence had to be put to the accused in order to seek his explanation thereon---Provisions of S. 342, Cr.P.C. were mandatory in nature and if they were not adhered to, a serious prejudice would be caused to the accused.

(f) Criminal trial---

----Benefit of doubt--- Scope--- Single circumstance creating a reasonable doubt about the prosecution case, benefit of the same would be extended to the accused not as a matter of grace but as a matter of right.

Kazim Raza Abdi for Appellant.

Abrar Ahmed Khichi, D.P.-G. for the State.

2018 P Cr. L J 991

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

QADIR BUX HAJANO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-235 of 2011 and Confirmation Case No.12 of 2011, decided on 17th February, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that two years prior to the present incident, accused had committed zina with the deceased---FIR was lodged by husband of deceased against the accused, he was arrested and confined to jail---On the basis of compromise, accused was released one month before the present occurrence---Accused, after release from jail, started issuing threats to the complainant and her daughter/deceased that as he had remained in jail on the basis of case lodged by the deceased, he would kill her---Accused on the day of occurrence caused hatchet blows on the neck of deceased, resultantly, the head of deceased was separated from her body and she died---Ocular account was furnished by four eye-witnesses including complainant---All the eye-witnesses had given the same version against accused with regard to place, date and time of incident---Deceased was a lady and she had no enmity with any other person---Eye-witnesses had no motive to falsely implicate the accused in the heinous crime---Ocular evidence was fully corroborated by the medical evidence and was straight forward and reliable---No mitigating circumstances had been pointed out by defence for reduction of the sentence---Circumstances had established that conduct displayed by the accused detracted from any sympathy to be extended to him in the matter of his death sentence---Appeal against conviction was dismissed in circumstances.

2005 YLR 166; PLD 2005 Kar. 18; 2010 PCr.LJ 1270; 2016 YLR 2815; 2017 SBLR 163; Ashiq Hussain v. The State 2017 SCMR 188; Noor Muhammad v. The State 2005 SCMR 1958 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, proof of---Effect---All the eye-witnesses had categorically stated that prior to the incident, present accused had committed zina with the deceased; FIR was lodged and accused was sent to jail---Accused was released from jail on the basis of compromise---Accused committed murder of deceased to teach a lesson to the deceased lady---All the eye-witnesses were cross-examined at length but nothing favourable to the accused came on record except some minor contradictions, which had no significance in the eyes of law---Circumstances established that alleged motive was proved, thus appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Accused had produced the hatchet used by him in the commission of offence---Report of Chemical Examiner with regard to recovered hatchet was positive--- Appeal against conviction was dismissed in circumstances.

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

----S. 302---Qatl-i-amd---Death sentence, award of---Scope---Death sentence in a murder case was a normal penalty---Court while awarding lesser sentence, was to give reasons.

Dadullah and another v. The State 2015 SCMR 856 and Ashiq Hussain v. The State 2017 SCMR 188 rel.

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

----S. 544-A---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Award of compensation---Trial Court was bound while convicting the accused to award compensation under S. 544-A, Cr.P.C. to the legal heirs of deceased, court was to record reasons for not granting the compensation---Accused/appellant was therefore, ordered to pay compensation of Rs. 300,000/- to the legal heirs of the deceased; on default accused would suffer simple imprisonment for six months---Appeal against conviction was dismissed in circumstances.

Talib Hussain and others v. The State 1995 SCMR 1776 rel.

Syed Tarique Ahmed Shah for Appellant.

Complainant in person.

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

2018 P Cr. L J 1015

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ahmad Khan, JJ

ABDUL REHMAN alias JUMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-149 of 2007, decided on 9th May, 2017.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Prosecution case was that 15-kilograms opium was recovered from the bag of accused---Evidence of complainant and recovery witness showed that 15-kilograms opium had been recovered from the bag of the accused in presence of mashirs---Accused was transporting the same in a taxi car and the taxi driver ran away, but the accused was apprehended---Opium was sent to the Chemical Examiner promptly and the positive report was received---Record showed that Anti Narcotics Force Officials had no animosity against the accused and there was no reason for the Anti-Narcotics Force Officials to foist such huge quantity of opium upon the accused---All the prosecution witnesses had deposed in line to support the prosecution evidence---Report of Chemical Examiner was positive---Witnesses had passed the test of lengthy cross examination but the defence failed to make any dent in the prosecution evidence or to pin point any material contradiction fatal to the prosecution evidence---No enmity whatsoever had been brought on record against prosecution witnesses---Record showed that complainant tried to call private persons from the road and made request to 4/5 persons but they were reluctant to act as mashir---Reluctance of general public to become witness in such like cases had become judicially recognized fact and there was no way out to consider the statement of the official witnesses as no legal bar or restriction had been imposed---Circumstances established that the judgment passed by the Trial Court did not suffer from any illegality, irregularity or infirmity so as to call for interference---Appeal against conviction was dismissed in circumstances.

[Case-law referred]

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Officials of Anti-Narcotics Force as witnesses---Officials of Anti Narcotics Force were the competent witnesses like other independent witnesses---Testimony of said officials could not be discarded merely on the ground that they were employees of Anti-Narcotics Force.

(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---Police officials as sole recovery witnesses---Competence---Principles---Prosecution case was that 15-kilograms opium was recovered from the bag of accused---Prosecution witnesses were police 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---In view of S. 25 of Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C. in narcotics cases had been excluded and non-inclusion of any private person was not a serious defect to vitiate the conviction of accused---Appeal against conviction was dismissed in circumstances.

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

----Ss. 9(c) & 21---Criminal Procedure Code (V of 1898), S. 156(2)---Search and investigation---Non-observance of the provisions---Defence had objected that in the present case, the Investigating Officer was the complainant as well as witness of the occurrence and recovery---Effect---Police Officer was not prohibited to be the complainant if he was a witness to the commission of offence and also to be the Investigating Officer, so long as it did not in any way cause prejudice to the accused person.

Abdul Hameed Bajwa for Appellant.

Siraj Ali Khan Chandio, S.P.P. ANF for the State.

2018 P Cr. L J 1027

[Sindh]

Before Adnan-ul-Karim Memon, J

QABIL KHAN---Applicant

Versus

VTH ADDITIONAL SESSIONS JUDGE SOUTH, KARACHI and others---Respondents

Criminal Revision Application No. 156 of 2016, decided on 9th August, 2017.

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

----S. 3---Complaint---Section 3 of Illegal Dispossession Act, 2005 could only be attracted when any person dispossesses, grabs, controls or occupies the property without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property---In the present case, complainant/applicant was neither lawful owner nor lawful occupier of the subject premises, therefore, S.3 of the Act was not attracted---Applicant had failed to point out that he was put in possession of the subject premises by respondent and was subsequently dispossessed---No sanctity, therefore, could be attached to the assertion of applicant---Circumstance established that no illegality or irregularity had been committed by Trial Court in passing the impugned order, revision petition was dismissed accordingly.

Shaikh Muhammad Nasim v. Mst. Farida Gul 2016 SCMR 1931 and Muhammad Bashir v. Haji Muhammad Siddique and others 1997 CLC 466 ref.

Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 rel.

(b) Transfer of Property Act (IV of 1882)---

----S. 53-A---If the possession of transferee was not under proper, legal and enforceable contract, protection of S. 53-A of Transfer of Property Act, 1882 was not available.

Haji Muhammad Usman v. Abdul Sattar and others PLD 2011 Kar. 405 rel.

Muhammad Ayoub Chandio for Applicant.

Mehar Khan for Respondent No.3.

Ms. Seema Zaidi, DPG for Respondents.

2018 P Cr. L J 1042

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

ASMATULLAH and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 148 of 2017 along with Special Criminal Anti-Terrorism Appeals Nos. 149, 150, 151 and 152 of 2017, decided on 14th November, 2017.

(a) Criminal trial---

----Heinousness of offence---Effect---Mere heinous nature of offence was not sufficient to convict the accused because the accused was presumed to be innocent until found otherwise at the trial.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(ff)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possessing of unlicensed arms, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that on receiving intelligence information, police parties were constituted and started search operation of the village---Four accused persons emerged on two motorcycles and on seeing police party, they started firing upon the police---Police also fired in their defence, in the result, two accused became injured and fell down and remaining two accused surrendered before the police---Police apprehended all the four accused---Four 30-bore pistols with twenty three bullets and one hand grenade were recovered from the possession of the accused persons---Six empties of SMG, four empties of MP-5 and seven empties of .30-bore pistol were recovered from the place of occurrence---Record showed that there was cross firing in between the accused and police party, with sophisticated weapons for about five minutes as stated by the complainant, but not a single injury was caused to any Police Officials---Complainant had deposed that during encounter, two accused received bullet injuries at their legs, as such, they were arrested and were shifted to hospital for treatment and obtained their Medical Certificates---Record revealed that prosecution had failed to produce the Medical Officer, who had examined and medically treated the injured accused persons---No explanation had been tendered by prosecution to justify the non-production of medical evidence---Act of withholding of the most material witness created dent in the case of prosecution---Alleged encounter had continued for five minutes in between police and accused, but neither during occurrence nor after the occurrence, anyone from public reached to the spot to witness the incident---Record transpired that incident took place in a populated area, but police did not call any private person to act as mashir of arrest and recovery proceedings---No explanation had been furnished in that behalf, as such, under said circumstances, false implication of the accused in the cases could not be ruled out---Evidence of the prosecution witnesses was found contradictory on material particulars, therefore the same could not be safely relied upon for maintaining the conviction---Complainant in his evidence, deposed that tyre of police mobile had burst due to firing and mobile was also damaged, whereas Investigating Officer in his evidence while contradicting that fact had deposed that there was no bullet mark at police mobile---No damage was caused to police mobile---Record showed that there was contradiction with regard to number of hand grenade and prosecution could not explain said ambiguity---Inspection report showed that the hand grenade was without detonator---Hand grenade was allegedly recovered on 6.10.2016 but inspection report showed that it was inspected on 14.10.2016, after the delay of eight days---Hand grenade was retained by whom during said intervening period had not been explained by the prosecution as to after its recovery under whose custody it was laid---Prosecution had not produced Bomb Disposal Expert for his evidence---Safe custody of hand grenade had not been proved---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

S. Khizar Askar Zaidi and Muhammad Akbar for Appellants.

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

2018 P Cr. L J 1064

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

SAJJAD alias SAJJU and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-109, D-110, D-112, D-118, D-119 of 2016, decided on 8th February, 2017.

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

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss. 324, 394, 353 & 34---Terrorism, attempt to commit qatl-i-amd, voluntary causing hurt in committing robbery, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Complainant (police) alleged that three unknown accused persons fired straight upon a constable (injured) who was posted as guard at the bungalow of an Additional District and Sessions Judge---During investigation accused persons were arrested but after their arrest no identification parade was held---Identification of the accused on headlights of vehicle and street light was weak source of identification and in peculiar circumstances of case it was highly doubtful---Identification of the culprits before the Trial Court was unsafe to rely for conviction---Investigating Officer arrested the accused persons on the ground that he had spy information that accused persons were involved in the commission of the offence---Injured had deposed that in fact there were six accused persons but had not described the features of the accused in his statement under S.161, Cr.P.C.---Evidence of injured was not straightforward and confidence inspiring---Injured witness would not be relied upon ipso facto because of injuries but it had to be examined that whether the evidence was trustworthy and confidence inspiring---No piece of evidence had been produced by the prosecution to connect the accused persons in the commission of the offence---Appeal was allowed accordingly.

Azhar Mehmood v. The State 2017 SCMR 135 and Said Ahmad v. Zammured Hussain 1981 SCMR 795 rel.

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

----Art. 24---Source of identification---Value---Identification of the accused on headlights of vehicle and street light was weak source of identification.

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

----Art. 22---No identification parade held---Effect---Identification of the culprits before the Trial Court was unsafe to rely for conviction.

Azhar Mehmood v. The State 2017 SCMR 135 rel.

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

----Arts. 3 & 17--- Testimony of injured witness--- Scope---Injured witness would not be relied upon ipso facto because of injuries but it had to be examined as to whether the evidence was trustworthy and confidence inspiring.

Said Ahmad v. Zammured Hussain 1981 SCMR 795 rel.

Mian Taj Muhammad Keerio for Appellant No.1 (in Criminal Appeal No. D-109 of 2016).

Shoukat Ali Kaka for Appellant (in Criminal Appeal No. D-110 of 2016 and Criminal Jail Appeal No. D-111 of 2016).

Mian Taj Muhammad Keerio and Shoukat Ali Kaka for Appellant (in Criminal Appeal No. D-112 of 2016).

Javed for Appellant (in Criminal Jail Appeal No. D-118 of 2016).

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

2018 P Cr. L J 1100

[Sindh]

Before Aftab Ahmed Gorar, J

MOHAMMAD NOMAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 183 of 2017, decided on 11th December, 2017.

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

----Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13-E---Criminal Procedure Code (V of 1898), Ss. 232, 233 & 235---Attempt to cause explosion, or for making or keeping explosives with intent to endanger life and property, making or possessing explosives under suspicious circumstances, possessing unlicensed arms---Trial for more than one offence--- Charge--- Scope---Separate charge-sheet, framing of---Scope---Trial Court while recording conviction and sentence of the accused persons had not specifically charge-sheeted the accused persons---Validity---Charge against accused should be specific, fair and clear in all respects to provide an opportunity to the accused to defend them in due course of trial---Charge was a brief formulation of specific allegations made against accused person, who was entitled to know its nature at the very early stage of trial and it must be conveyed to the accused with sufficient transparency and clarity as to what the prosecution intended to prove against them---Mandatory provisions of S. 233, Cr.P.C., provided that for every distinct offence a separate charge-sheet should be framed in order to enable the accused to defend himself against the accusations levelled against him---Section 235, Cr.P.C., provided a proper mechanism for trial of an accused, charged for more than one offence---In the present case, the Trial Court had not complied with mandatory provision of S. 233, Cr.P.C., by not framing separate charge against the accused persons---Appeal was allowed by setting aside convictions and sentences of the accused persons and matter was remanded to Trial Court for de novo trial.

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

----S. 342---Examination of accused by court---Scope---Incriminating material was to be put to the accused---Examination of accused under S. 342, Cr.P.C. was a mandate to enable the accused to explain any circumstance appeared against him in the prosecution evidence.

Muhammad Shah v. The State 2010 SCMR 1009; Abdul Ghaffar v. The State 2011 MLD 239; Shiral alias Sher Ali v. The State 1999 SCMR 697 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

(c) Criminal trial---

----Evidence---Interpretation of---Principle---When there were two interpretations of evidence, one favouring the prosecution and the other favouring the accused, the latter one was to be acted upon.

Mehmood A. Qureshi and Arshad Mehmood for Appellants.

2018 P Cr. L J 1122

[Sindh (Hyderabad Bench)]

Before Mrs. Kausar Sultana Hussain, J

Mst. SHAHEEN AFTAB---Petitioner

Versus

MUHAMMAD MAJID and another---Respondents

Constitutional Petition No. S-2026 of 2017, decided on 2nd May, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Recovery of minor---Father filed habeas corpus petition seeking recovery of his minor son on the ground that the mother had remarried, and, therefore, she had lost her right of 'Hizanat'---Said petition was allowed and custody of minor was handed over to the father---Legality---Impugned order showed that the mother/petitioner was not provided any opportunity to reply to the habeas corpus petition---On mother's first appearance before the Court in absence of her counsel the minor was handed over to the father on the ground that the mother had contracted second marriage---Mother denied before the High Court that she had contracted a second marriage---Moreover the Trial Court did not bother to see that the minor was a suckling baby aged about 30 months---Besides the minor was a son and settled law provided that mother was legally entitled to the custody of minor son till the age of seven years---High Court directed that the father should hand over custody of minor to the mother immediately; that the mother shall not move the minor out of the territorial jurisdiction of the High Court, and that ultimate determination of the entitlement of custody shall lie with Guardian and Ward Judge to whom the parties could approach, if they so desired.

Tayyaba Khan v. Syeda Begum and another PLD 1994 Kar. 204 ref.

Tariq Mehmood for Petitioner.

Syed Safdar Ali for Respondent No.1.

2018 P Cr. L J 1145

[Sindh]

Before Muhammad Junaid Ghaffar and Muhammad Humayon Khan, JJ

SULTAN QAMAR SIDDIQUI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

C.P. No. D-1657 of 2017, decided on 31st May, 2017.

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

----S. 24(b)---Delivery of copy of reference to accused as mandated by S. 24(b) of the Ordinance---Scope---National Accountability Ordinance, 1999 is a special law and provides that its provisions prevail wherever deemed necessary---Provisions of S. 24(b) of National Accountability Ordinance, 1999 are required to be mandatorily followed.

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

----S. 24(b)--- Word 'delivered' occurring in S. 24(b) of the Ordinance---Scope---Word 'delivered' means that copy of reference must be provided to accused either he is in custody or otherwise.

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

----Ss. 9(a) & 24---Criminal Procedure Code (V of 1898), Ss. 63 & 167---Successive arrests of accused---Accused was arrested in another case while on bail---Judicial remand, setting aside of--- Petitioner was released by High Court on bail but authorities arrested him in another case and he was sent to judicial custody by Accountability Court---Validity---No one could be put behind bars in a discreet and unlawful manner by concealing material facts from the court and by not disclosing true facts while filing comments and in defiance and derogation to mandatory provision of S. 24(b) of National Accountability Ordinance, 1999---Said provision was to be complied with true disclosure and by providing copy of reference---In the present case, accused was put behind bars time and again in one case or the other whether it was under Anti-Terrorism Act, 1997 or Military Courts or the Accountability Court---High Court in view of peculiar and distinctive facts of petitioner's ordeal, sufferings and checkered history behind his arrest and release, set aside judicial remand order passed by the Accountability Court as authorities did not act in accordance with law and within mandate of National Accountability Ordinance, 1999 by arresting the petitioner---Jail authorities were directed by the High Court to release petitioner from jail---Constitutional petition was allowed in circumstances.

Proceedings against Justice (R) Iftikhar Hussain Chaudhary and 10 others PLD 2011 SC 197; The State v. Nasir Javed Rana, Civil Judge 1st Class/Magistrate Section 30, Rawalpindi PLD 2007 Kar. 469; PLD 2005 SC 86; Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others PLD 2007 Kar. 469; Raja Muhammad Zarat Khan v. Federation of Pakistan through Secretary, Ministry of Cabinet Division and 2 others PLD 2007 Kar. 597; Sardar Amin Farooqui v. Chairman NAB and another 2014 PCr.LJ 186; Noor Muhammad and others v. The State and others 2015 PCr.LJ 1569; Shoaib Warsi and another v. Federation of Pakistan and others PLD 2017 Sindh 243; Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi 2009 SCMR 141 and Abdul Rasheed Bhatti v. Government of Punjab PLD 2010 Lah. 468 ref.

Khawaja Shamsul Islam along with Muhammad Shahzad for Petitioner.

Muhammad Altaf, Special Prosecutor NAB along with Irfan Ali I.O./AD NAB for Respondents.

2018 P Cr. L J 1171

[Sindh]

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

TAHIR JAMEEL DURRANI through his Wife---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and another---Respondents

C.P. No. D-2310 of 2017, decided on 1st November, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---Bail, grant of---Delay in conclusion of trial---Hardship, principle of---Applicability---Petitioner was accused of corruption and corrupt practices and he was in custody for past 17 months without conclusion of trial---Plea raised by petitioner was that despite lapse of direction issued by the High Court in earlier bail petition, trial could not be concluded---Validity---Casual attitude by counsel of petitioner indicated that he had no genuine desire to proceed with the case and was simply passing time until time given in direction to complete trial by High Court expired so that he could again apply for bail on hardship grounds with high possibility of such bail being granted---Such tactic on part of petitioner was a deliberate attempt to abuse concept of grant of bail on hardship grounds as well as to defeat directions of court to complete case within a timely manner---High Court while exercising discretion could not ignore such conduct which was against petitioner---Constitutional petition was dismissed in circumstances.

Syed Rashid Hussain Rizvi v. Chairman NAB Civil Petition No.17 of 2017; Nisar Ahmed v. The State and others PLD 2016 SC 11; Amir Masih v. The State and another 2013 SCMR 1524; Shahid Umer v. The Chairman NAB C.P. No. D-5369 of 2017; Malik Naveed Khan v. DG NAB (unreported) dated 30.03.2016 and Saifullah v. State PLD 2017 Isl. 143 ref.

Raj Ali Wahid Kunwar for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB for Respondents.

2018 P Cr. L J 1179

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

SIRAJUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-12 of 2017, decided on 2nd February, 2017.

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

----Ss. 324, 332, 353, 337-A(i), 337-F(i), 337-H(2), 504, 147 & 148---Anti-Terrorism Act (XXVII of 1997), Ss. 21-L & 7---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Constitution of Pakistan, Arts. 9 & 10-A---Attempt to commit qatl-i-amd, hurt, assault or criminal force to deter public servant from discharging of his duty, shajjah-i-khafifah, damiyah, act to endanger the human life or the personal safety, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, act of terrorism---Absconsion of accused---Conviction and sentence in absentia---Scope---After proceedings under Ss. 87 & 88, Cr.P.C. accused-appellant was convicted in absentia whereas, he had been acquitted from the main case---Validity---Record showed that proceedings under Ss. 87 & 88, Cr.P.C. were initiated for declaring the accused as proclaimed offender for the purpose of proceeding with the case in his absentia---Neither any charge was framed against the accused under S. 21-L of Anti-Terrorism Act, 1997 nor recorded evidence to prove the ingredients of S. 21-L---Trial Court had failed to formulate a point for determination regarding the offence under S. 21-L of Anti-Terrorism Act, 1997 in the impugned judgment---Nothing was available on record to show that absconsion of accused was intentional---No finding had been recorded by the Trial Court to the effect that accused-appellant was fugitive from law---Trial Court had convicted and sentenced the accused in a cursory manner---Procedure adopted by the Trial Court in convicting and sentencing the accused under S. 21-L of Anti-Terrorism Act, 1997 was illegal---Accused was acquitted for offences under Ss. 324, 332, 353, 337-A(i), 337-F(i), 337-H(2), 504, 147 & 148 Penal Code, 1860 and under S. 7, Anti-Terrorism Act, 1997---Nothing was available on record to prove the offence under S. 21-L of the Anti-Terrorism Act, 1997 against the accused-appellant---Circumstances established that conviction of accused-appellant under S. 21-L of Anti-Terrorism Act, 1997 recorded by the Trial Court was violative of Arts. 9 & 10-A of the Constitution---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

Muhammad Arif v. The State 2008 SCMR 829 ref.

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

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

Mir Ikhlaq Ahmed and another v. The State 2008 SCMR 951; Ali Hassan v. The State 2009 MLD 1198 and Khanzado alias Ketoo Sabzoi v. The State 2015 PCr.LJ 1561 rel.

Javed S. Kumbhar for Appellant.

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

2018 P Cr. L J 1200

[Sindh]

Before Khadim Hussain M. Shaikh and Amjad Ali Sahito, JJ

GHULAM MUSTAFA---Appellant

Versus

The STATE/ANF---Respondent

Special Narcotic Appeal No. 141 of 2010, decided on 5th March, 2018.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence--- Sentence, reduction in--- Prosecution case was that 250-kilograms charas in different bags were recovered from the house of accused who was arrested on the spot---Ocular account was furnished by two witnesses including complainant---Record showed that a huge quantity of 250-kilograms charas was recovered during search of the house of accused---Accused had pleaded that provision of S. 103, Cr.P.C. had been violated, whereas the applicability of S. 103, Cr.P.C. in narcotics cases had been excluded---Non-inclusion of private witness in recovery proceedings was not a serious defect to vitiate the conviction---Prosecution witnesses had furnished straight forward and confidence inspiring evidence and there was nothing on record to show that they had deposed against the accused maliciously or out of any animus---Police Officials could not plant such a huge quantity of narcotic upon the accused from their own source---Witnesses were cross-examined at length, but no material discrepancy or contradiction in the evidence was pointed out by the defence---Complainant had fully supported the version of FIR and recovery of charas from the house of accused---Mashir also corroborated the evidence of complainant---No enmity, ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate the accused---Prosecution had succeeded to bring the guilt of accused home and defence had failed to point out any material illegality or serious infirmity committed by the Trial Court while passing the impugned judgment---Family members of the accused were extremely poor and were virtually starving due to confinement of accused in jail---Jail roll reflected that the accused had served out the sentence of twenty three years, eight months and twenty eight days including remissions and by now the accused remained in custody for twenty four years, two months and twenty eight days coupled with the fact that accused was first offender and had no previous criminal record to his credit---Appeal was partly allowed in such circumstances and conviction of accused was maintained, but the sentence of life imprisonment of the accused was altered and reduced to the period he had already undergone.

(b) Criminal trial---

----Witness---Police Officials as witnesses---Scope---Police Officials would be competent and their evidence could not be discarded, only for the reasons that they were Police Officials.

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

----Ss. 9(c) & 21---Possession of narcotics---Appreciation of evidence---Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997---Allegation against accused was that 250-kilograms charas was recovered from the house of the accused---Accused contended that he was arrested in violation of S. 21 of Control of Narcotic Substances Act, 1997---Effect---Provisions of S. 21 of Control of Narcotic Substances Act, 1997 were not mandatory and non-compliance thereof under peculiar circumstances of the case, would not affect the recovery of such a huge quantity of narcotic substance---Complainant had stated that he had received information at about 2.00 during the night, therefore, it was not possible for him to obtain search warrant at the cost of disappearance of the accused and narcotic---Non-compliance of the provision of S. 21 of the Control of Narcotic Substances Act, 1997 could not make the conviction of the accused bad in the eyes of law.

Muhammad Akram v. The State 2007 SCMR 1671 rel.

Mamoon A. K. Shirwany for Appellant.

Habib Ahmed, Special Prosecutor for the ANF.

2018 P Cr. L J 1211

[Sindh (Sukkur Bench)]

Before Mohammed Karim Khan Agha, J

Syeda RUKIYA SHAH and another---Appellants

Versus

ABDUL SHAKOOB and others---Respondents

Criminal Transfer Application No. S-108 of 2015, decided on 8th March, 2017.

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

----S. 526---Application for transfer of case---No-confidence in the Presiding Officer---Transfer of case was sought on the grounds that Presiding Officer had granted post-arrest bail to respondents unfairly and attempted to pressurize the petitioners to compromise with respondents and next dates of hearing were given according to the wishes of respondents---Validity---Main ground for the applicants of loosing faith in the Presiding Officer was that he allowed post-arrest bail to the respondents, which was totally unjustified---Record showed that applicants had not appealed against the grant of post-arrest bail to the respondents, which did not fit in with the contention that Presiding Officer was biased or against them---If applicants had moved appeal, bias or favoritism shown by the Presiding Officer to the respondents in granting bail, could have been rectified at that stage---Applicants had levelled bald allegations against the Presiding Officer, which had not been substantiated by any material on record, applicants, in circumstances, had not been able to point out any corroborative material from the record in support of their claim that the Presiding Officer unfairly and unjustifiably allowed post-arrest bail to respondents---Application for transfer of case was dismissed in circumstances.

Bilal Hussain v. IInd Additional Sessions Judge, Hyderabad and 2 others 2013 MLD 1593; Surraya Begum v. The State and another PLD 1996 Lah. 189 and Amir Altas Khan and another v. The State and 2 others 2002 SCMR 709 ref.

Sameer Ehsanullah Makhzan and 3 others v. Muhammad Asif Zaman and 3 others PLD 1993 Lah. 554 rel.

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

----S. 526---Transfer of case---Passing of adverse judicial order---Adverse judicial order passed against a party would not be sufficient ground to justify the transfer of the case from one Trial Court to another---Aggrieved party had remedy to challenge the said adverse order before the higher forum---Application for transfer of case was dismissed accordingly.

Mian Muhammad Rafiq Saigol v. BCCI and others 1996 CLC 1930 rel.

Shabbir Ali Bozdar for Appellants.

Mehfooz Ahmed Awan for Respondents Nos. 1 and 2.

Abdul Mujeeb Shaikh for Respondent No.3.

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

2018 P Cr. L J 1230

[Sindh]

Before Fahim Ahmed Siddiqui, J

Khuwaja MUHAMMAD WASEEM---Appellant

Versus

Syed JALEES ANJUM and others---Respondents

Criminal Acquittal Appeal No. S-31 of 2015, decided on 19th April, 2017.

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

----S. 182--- Criminal Procedure Code (V of 1898), Ss. 417, 22-A & 22-B---False information with intent to cause public servant to use his lawful power to the injury of another person---Appreciation of evidence---Justice of Peace, powers of---Scope---Appeal against acquittal---Police submitted Kalandra to the Judicial Magistrate with recommendation to take action against the accused under S. 182, P.P.C.---Judicial Magistrate acquitted the accused from the charge under S. 182, P.P.C.---Validity---Record showed that parties were well acquainted with each other for last so many years---Allegedly the accused persuaded the sister of appellant to enter into marital bond with him---Marriage was solemnized under free-will which was certainly not accepted wholeheartedly by the appellant's family---Relations between the accused and his wife became strained after some time, which multiplied the tension between accused and his in-laws---First Information Report by the accused was lodged against the appellant---Police Officer submitted report in the said FIR under "B" class, to the Magistrate with request for trial under S. 182, P.P.C. against the accused---Legislature had not given any authority or power to nominated accused of false and fabricated FIR to initiate proceedings under S. 182, P.P.C.---Other remedies were available to a nominated accused of such FIR and he had every right to initiate the proceedings for malicious prosecution, but he had no right to enter into proceedings initiated by Police Officer under S. 182, P.P.C. even at the appellate stage as the appeal was continuity of the original proceedings---Record transpired that said FIR was lodged under the direction of Ex-Officio Justice of Peace and at the time of issuing direction, the Ex-Officio Justice of Peace had given direction to police that if the FIR was lodged and the same was found false, then action should be taken according to law---Ex-Officio Justice of Peace could not give such directions to police as it was the sole prerogative of police to initiate proceedings under S. 182, P.P.C.---Circumstances established that no misreading and non-reading of evidence was found in the impugned judgment---Appeal against acquittal was dismissed in circumstances.

Muhammad Ibrahim v. Umaid Ali and 4 others 2016 MLD 346 rel.

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

----S. 156---Investigation---Duty of police---Police was duty bound to collect some positive evidence either in support of the incident or in the negation of the same---If some concrete evidence were collected by the police to negate the happening of the incident, then it could be said that the reported incident was maliciously false.

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

----Ss.22-A(6) & 25---Ex-officio Justice of Peace---Functions---Scope---Functions performed by the Ex-officio Justice of Peace were not executive or administrative in nature---Such functions were quasi-judicial.

Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

Abbadul Hasnain for Appellant.

Syed Farhat Hussain Naqvi for Respondent No.1.

Mrs. Seemi Zaidi, A.P.-G.

2018 P Cr. L J 1240

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

PAHAR KHOSO and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. D-292 and Criminal Acquittal Appeal No. D-327 of 2012, decided on 2nd May, 2018.

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

----Ss. 302(b), 324, 341, 427, 114, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, wrongful restraint, mischief, abetment, rioting---Appreciation of evidence---Benefit of doubt---Prosecution witness, had admitted that names of accused were not mentioned in his statement under Ss.161 & 164, Cr.P.C., but were disclosed before the Magistrate while recording statement under S. 164, Cr.P.C., but the Magistrate had not written their names---Place of incident was a road; time was odd hours of night (10.40 p.m.) and source of identification was headlights of vehicle, which was very weak type of source of identification---Delay of 48 hours in lodging of FIR without plausible explanation, had created serious doubts in the prosecution case---Prosecution witnesses were interested witnesses and inimical to the accused persons---Prosecution witnesses had made improvements and contradicted each other, thus their evidence was not trustworthy, reliable and confidence inspiring---Trial Court had not believed the evidence of recovery as well as of identification parade and acquitted co-accused persons by extending them benefit of doubt---Star witness of the incident had not supported the version of complainant party---High Court had already dismissed the appeal of complainant against acquittal and complainant had not challenged the same which had attained finality---Statements under S.161, Cr.P.C. of prosecution witnesses were recorded after 10 days of registration of FIR, which delay had not been explained by prosecution---Said unexplained delay was fatal to the prosecution case---Pistol along with Magazine and five live bullets recovered from place of incident, were sent to the Ballistic Expert, with inordinate delay of about 2 months without any explanation---No evidence was available to the effect that pistol and empties were kept in safe custody in Malkhana---Several circumstances in the case had created serious doubts in the prosecution case---Trial Court had also failed to record findings with regard to defence plea---Prosecution having failed to prove its case against accused persons, conviction and sentences recorded by the Trial Court, were set aside and accused were ordered to be released forthwith.

Shoukat Ali v. The State 2004 YLR 356; Ghulam Qadir v. The State 2014 PCr.LJ 865; Abdul Majeed v. The State 2001 YLR 2128; Muhammad Hanif alias Pocho v. The State 2014 PCr.LJ 928; Muhammad Afzal alias Abdullah and others v. The State 2009 SCMR 436; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Rahat Ali v. The State 2010 SCMR 584; Muhammad Asif v. The State 2017 SCMR 486; Shakeel Ahmed v. The State SBLR 2015 Sindh 100; Muhammad Asif v. The State 2008 SCMR 1001; Abdul Razzaq and 3 others v. The State 2014 YLR 1479; G. M. Niaz v. The State 2018 SCMR 506; Gul Zaman v. The State and another SBLR 2016 Sindh 1291; Zeeshan alias Shani v. The State 2012 SCMR 428; Abdul Qadir alias Fauji v. The State and another 2017 YLR 2284; Muhammad Shah v. The State 2010 SCMR 1009; Ishaq alias Kakan v. The State SBLR 2016 Sindh 1157; Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68; Habib v. The State 2014 PCr.LJ 1067; Muharram and another v. The State 2008 YLR 2441; Tariq v. The State 2017 SCMR 1672; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Murad Ali and another v. The State 2011 PCr.LJ 1133; Ayub Masih v. The State PLD 2002 SC 1048; G.M. Niaz v. The State 2018 SCMR 506; Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gul v. Ziarut Gul 1976 SCMR 136 and Muhammad Iqbal v. State 1984 SCMR 930; Syed Mahmood Shah v. State 1993 SCMR 550 ref.

(b) Criminal trial---

----Motive---Scope---Motive which was treated as backbone of criminal case, was always treated as double edged weapon, which cuts both sides.

(c) Criminal trial---

----Benefit of doubt---Several circumstances, were not required for extending benefit of doubt---Single circumstance which would create serious doubt in the prosecution case about the guilt of accused, would entitle him for its benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Syed Madad Ali Shah for Appellants (in Criminal Appeal No.D-292 of 2012).

Shabeer Hussain Memon for Respondent No.1 (in Criminal Acquittal Appeal No. D-327 of 2012).

Kashif Hussain Agha for Respondent No. 2 (in Criminal Acquittal Appeal No. D-327 of 2012).

Shahzado Salim Nahyoon, DPG for the State.

2018 P Cr. L J 1272

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

MUHAMMAD ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-61 of 2017, decided on 29th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Bail, grant of---Further inquiry---Name of accused appeared in FIR with allegation, that at the time of incident, he was present at the place of incident with hatchet but at the same time it also appeared that accused did not use the hatchet against complainant or the deceased---Deceased died due to firearm injury caused by co-accused persons---Common intention was normally one of further inquiry at bail stage unless there were other compelling reasons and circumstances to reach a different conclusion---Mere absconsion of accused was not sufficient to refuse bail to him---Bail was granted accordingly.

Dilmurad v. The State 2010 SCMR 1178 and Manzoor Hussain and another v. The State 2011 SCMR 902 ref.

Mumtaz Alam Laghari for Applicant.

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

2018 P Cr. L J 1294

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

VIJAY KUMAR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-113 of 2017, decided on 29th August, 2017.

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

----Arts. 3 & 4---Prohibition of manufacturing of intoxicant, owing or possessing intoxicant---Jurisdiction of High Court---Scope---Prosecution case was that 18-pints of whisky were recovered from the possession of the accused---Allegedly, accused was carrying the recovered whisky for selling---One pint of whisky was separated as sample for sending to the Chemical Examiner for its analysis---Accused had objected that the Court had no jurisdiction to entertain the present revision application as the jurisdiction actually rested with the Federal Shariat Court---Validity---Record showed that accused had been convicted by the judgment passed by the Judicial Magistrate, which had been maintained and upheld by the appellate court---Accused had filed the present revision application by impugning the judgments of two courts below under Prohibition (Enforcement of Hadd) Order, 1979---Revision application under Ss.435 & 439, Cr.P.C. would be competent before the High Court in respect of any proceedings before any criminal court---High Court, while exercising such powers, for the purpose of satisfying itself as to the correctness, legality or propriety of any proceedings of such criminal court, could call for record and examine the same---Revisional power did not lie with High Court in respect of Prohibition of (Enforcement of Hadd) Order, 1979---Federal Shariat Court could call and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood, for the purpose of satisfying itself as to the correctness, legality or propriety of any findings, sentence or order passed by such court and the revisional power of High Court in respect of Hudood matters, was excluded---Circumstances established that the present revision application before the High Court was incompetent---Revision was transferred to Federal Shariat Court, in the circumstances.

Ghulam Muhammad v. The State 2013 PCr.LJ 105; Juman and another v. The State PLD 2016 Sindh 191 and Aukaz and another v. The State 2016 PCr.LJ 130 ref.

Vasand Thari for Applicant.

2018 P Cr. L J 1307

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

RAHEEL ABBAS---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-700 of 2017, decided on 29th September, 2017.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Case against accused had been challaned and accused was no more required for investigation---Case of prosecution being based upon the evidence of Police Officials, no question would arise for tampering their evidence at the hands of accused---Case of prosecution rested upon the evidence of Police Officials, their evidence was required to be minutely scrutinized at the time of trial as to whether offence as alleged in the FIR was committed by accused in a manner as narrated by the complainant or otherwise---Nothing was on record to show that accused was previous convict or had been arrested in other case of similar nature in the past---Complainant (Sub-Inspector of Police), had acted in the case as Investigating Officer---Evidence of the complainant, who himself conducted investigation, though was admissible, but for the safe administration of justice, he should have entrusted the investigation to some other Police Officer, so that nobody could raise any finger on the investigation---Trial Court was yet to determine as to whether investigation carried out by the complainant who himself had acted as Investigating Officer of the case, could safely be relied upon or otherwise---Accused had already sat in the B. Com. (Part-I) examination and relevant documents were on record---Examination was scheduled to be held---If at such a stage bail was refused, career of accused would be spoiled---Accused, was admitted to bail, in circumstances.

Muhammad Sachal R. Awan for Applicant.

Irum, DDPP for the State.

2018 P Cr. L J 1313

[Sindh]

Before Salahuddin Panhwar and Muhammad Saleem Jessar, JJ

ABDUR RAB alias ALI AKBER and others---Applicants

Versus

The STATE and others---Respondents

Criminal Revision No. 59 of 2016, decided on 31st May, 2017.

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

----Ss. 6 & 12---Criminal Procedure Code (V of 1898), S. 173---Jurisdiction of Anti-terrorism Court---Scope and extent---Anti-Terrorism Court for taking cognizance and conducting trial of offences, had to make tentative assessment with reference to allegations levelled in the FIR, the materials collected by the investigation agency and the surrounding circumstances, depicting the commission of the offence.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 23---Qatl-i-amd, common intention, act of terrorism---Dismissal of application for transfer of case from Anti-Terrorism Court to an ordinary criminal Court---Petitioners sought transfer of the case from Anti-Terrorism Court to an ordinary criminal Court on the grounds that the dispute between two parties was of personal vendetta, whereas S. 6 provided scope of "terrorism" in a larger sense---Mere allegations were not sufficient to make a case of terrorism---Validity---Prosecution case was that the accused and co-accused persons tried to occupy irrigation plot due to non-payment of Bhatta, on failure, they killed younger brother of complainant---Complainant party was so afraid that they shifted their cousin to some other place---Accused and co-accused chased them and committed the murder of their cousin---Contents of FIR prima facie showed that there was a demand of Bhatta and failure to pay the same resulted into death of cousin of complainant---Complainant party in fear shifted to another city---Record transpired that accused persons followed/chased the complainant party from one city to the other to commit murder---Admittedly, deceased was witness of the previous occurrence, but had lost his life, thus, it was not a case of simple murder for personal enmity but surrounding circumstances had spoken volumes as to how it was planned and executed perhaps with a message for others that limitations of town/city and time were immaterial for accused persons to murder those who dare to stand before them---Facts and circumstances of the matter brought the present case within the mischief of S. 6(2) of the Act, 1997---Revision petition was dismissed in circumstances.

2014 PCr.LJ 43 and PLD 2005 Kar. 344 ref.

2017 SCMR 533; 2016 SCMR 1754 and Kashif Ali v. The Judge, Anti-Terrorism, Court No. II, Lahore and others PLD 2016 SC 951 rel.

Fareed Ahmed A. Dayo for Applicants.

Ali Gohar Masroof for the Complainant.

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

2018 P Cr. L J 1326

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD YAMIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1549 of 2016, decided on 20th March, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 354, 352, 452, 506, 504, 337-A(i) & 338-B---Assault or criminal force to woman with intent to outrage her modesty, house trespass after preparation for hurt, assault or wrongful restraint, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt, isqat-i-janin---Pre-arrest bail, confirmation of---Further inquiry---Complainant had alleged that accused along with his family members and others entered into his house and manhandled the complainant and other inmates due to which complainant lost her foetus---No specific injury was attributed to the accused---No firearm or sharp cutting weapon was used, therefore, question of recovery did not arise---Complainant had not reported the incident immediately though Police Station was at a distance of about a half kilo meter---FIR was lodged after seeking directions from Ex-officio Justice of Peace, even then complainant did not approach to police to record her statement and FIR was lodged with a further delay of two days---Parties resided in the neighbourhood and were antagonistic---Medical record was not reliable to connect the untoward happening with the alleged incident---Co-accused to whom similar allegations were levelled succeeded in getting the relief of bail, therefore, similar treatment was required to be extended to the accused---Case against the accused was that of further inquiry into his guilt within the purview of subsection (2) of S. 497, Cr.P.C.---Pre-arrest bail granted to accused was confirmed accordingly.

Ansar Mukhtar for Applicant.

Ms. Saify Ali Khan for the Complainant.

2018 P Cr. L J 1341

[Sindh (Sukkur Bench)]

Before Omar Sial, J

MUHAMMAD SIDDIQUE and 5 others---Appellants

Versus

MUHAMMAD HARIF and another---Respondents

Criminal Appeal No. S-87 of 2016, decided on 17th May, 2017.

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

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act, 2005---Pre-conditions---Any one found committing offence described in S. 3 of the Act, would be amenable to prosecution under the provisions of Illegal Dispossession Act, 2005---No past record of the accused needed to be gone into by the court.

Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 ref.

Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 269 rel.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), Preamble---Prevention of illegal possession of property---Criminal Procedure Code, 1898---Applicability---Scope---Section 9 of Illegal Dispossession Act, 2005, had made the Code of Criminal Procedure, 1898 applicable to the cases under the Act---Aggrieved person, had a right of appeal or revision as provided in the Cr.P.C., for redressal of his grievance.

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

----Ss. 3 & 4---Illegal possession---Ownership of disputed property---Determination--- Question of ownership could not be decided in the proceedings initiated under the Illegal Dispossession Act, 2005.

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

----Ss. 3 & 4---Illegal possession---Appreciation of evidence---Complainant had alleged that he was absolute and exclusive owner of the suit property being purchaser of the same---Complaint against the appellants, was allowed by the Trial Court and appellants were convicted---Validity---Record showed that area of land from where the complainant claimed to have been dispossessed was not identified---No independent witness was examined who could have testified that the complainant party was in possession of the land on the date of alleged dispossession---Circumstances established that the complainant could not prove that offence under Illegal Dispossession Act, 2005 was committed by the accused-appellants---Appeal was allowed and appellants were acquitted in circumstances.

Qurban Ali Malano and Ghulam Shabbir Dayao for Appellants.

Shafique Ahmed Khan for the Complainant.

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

2018 P Cr. L J 1358

[Sindh]

Before Ahmed Ali M. Sheikh, C.J. and Yousuf Ali Sayeed, J

ABDUL KARIM alias PATNI and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 287, 288, 289 and 290 of 2015, decided on 2nd May, 2017.

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

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(ff)---Making or keeping explosive with intent to endanger life or property, possessing unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that a police party, acting on the basis of information received from informant, encountered five suspicious persons; firing ensued, the police succeeded in apprehending two accused-appellants---Prosecution had alleged that accused-appellants were arrested on the spot---Accused-appellants had contended that they were arrested by the Rangers six days prior to the alleged occurrence and were detained for several days in an unidentifiable location and then handed over to the police and falsely implicated in the present cases---Deposition of prosecution witnesses showed that members of the public were present at the time and place of occurrence but none were produced to bear witness to the occurrence---Prosecution stated that it was unwillingness on the part of public to come forward---Prosecution did not explain as to why neither the police personnel at the crime scene at the time of the occurrence nor the Investigating Officer made effort to have private persons as witness---Investigating Officer had confirmed that he did not see any bullet marks at the crime scene, and did not associate any private witness albeit the crime scene being a populated area---Investigating Officer deposed that he had not even read the Bomb Disposal Unit report---Said facts had detracted from the credibility of the investigation and the case of the prosecution---Record showed that two pistols and two hand grenades without any numbers, description or identifying marks were recovered from the possession of accused-appellants---Examination reports of Forensic Division showed that recovered pistols and hand grenades had numbers and description---Facts and circumstances of the case coupled with the absence of any prior criminal record of the accused-appellants, created doubt as to the veracity of the prosecution's case, benefit of which would resolve in favour of accused-appellants---Accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court.

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

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7(1)(ff)---Making or keeping explosive with intend to endanger life or property, possessing unlicensed arms, act of terrorism---Appreciation of evidence---Recovery of arms and ammunition---Scope---Prosecution had alleged that two pistols and two hand grenades were recovered from the possession of accused-appellant, which were sealed in cloth parcels and were signed by the official recovery witnesses---No signatures were visible on the sealed parcels, when confronted at the time of evidence---Record showed that recovered explosive device was retained for fifteen days from the alleged date of recovery without being made safe---Recovered hand grenades were found to be without detonators---Circumstances established that prosecution failed to prove the recovery of arms and ammunitions against the accused-appellants.

Saifullah for Appellants (in all cases).

Abrar Khichi, learned A.P.-G. for the State (in all cases).

2018 P Cr. L J 1368

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon, J

IQBAL HUSSAIN---Applicant

Versus

The STATE and another---Respondents

Criminal Revisions Nos. 46, 47, 48, 49 and 50 of 2012, decided on 24th January, 2017.

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

----Ss. 540 & 340---Re-examination/recalling of witnesses---Trial Court dismissed application filed under S. 540, Cr.P.C. for re-examination of prosecution witness---Accused-petitioner contended that though the prosecution witnesses were cross-examined but some of the witnesses were cross-examined by the accused-petitioner himself and important questions were inadvertently left to be asked from the witnesses; prosecution witnesses be summoned for further cross-examination to meet the ends of justice---Validity---Record showed that prosecution produced evidence, which took more than twelve years to be completed---Defence moved application for further cross-examination of witnesses already examined after a period of a decade, when the matter was fixed for the statement of accused---No legal justification was shown in the application except that "some question were left to be asked"---Admittedly, most of the prosecution witnesses were cross-examined at length by the defence counsel and some of the prosecution witnesses were cross-examined by the accused-petitioner himself where defence counsel had cross-examined the prosecution witnesses, there was no reasonable ground and justification for exercising the powers under S. 540, Cr.P.C. to recall the witnesses for further cross-examination as the same would cause delay in disposal of case; so far prosecution witnesses, cross-examined by the accused-petitioner himself was concerned, his ability to cross-examine the witnesses could not be equated or substituted as that of counsel---Record showed that Trial Court had not discharged its duty in accordance with S. 340, Cr.P.C., while examining the prosecution witnesses who were cross-examined by the accused-petitioner himself as he was afforded the services of a counsel on government expenses which was mandatory in view of S. 340, Cr.P.C.--- Circumstances established that re-calling the prosecution witnesses, who were cross-examined by the accused-petitioner himself was necessary to meet the ends of justice---Revision petition was allowed to the extent of said witnesses, who were cross-examined by the accused-petitioner himself and dismissed to the extent of re-calling of remaining prosecution witnesses.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

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

----S. 540---Re-examination/re-calling of witnesses---Power of court---Scope---Provision of S. 540, Cr.P.C. had given unrestricted power to the court to call evidence at any stage, provided Court was satisfied that it was essential for a just decision.

Parmanand for Applicants.

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

2018 P Cr. L J 1375

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

MUHARAM ALI WAHOOCHO---Applicant

Versus

SESSIONS JUDGE KAMBAR SHAHDAD KOT, AT KAMBAR and 2 others---Respondents

Criminal Revision No. 3 of 2012, decided on 22nd July, 2017.

Penal Code (XLV of 1860)---

----S. 298-A---Use of derogatory remarks, etc. in respect of holy personages---Proof---Absence of derogatory remarks from the record---Accused was convicted by Trial Court and sentenced to one month imprisonment along with fine for Rs.1000/- but Lower Appellate Court enhanced the sentence to 3 years and increased fine to Rs.5000/---Validity---Unless offending words were brought on record, it was hard to conceive that the words allegedly uttered by accused were actually offending in nature---Offence with which accused was charged was serious in nature and no one could be held guilty of such offence only by levelling allegations that certain derogatory or offending words were used by accused---To establish case against accused it was necessary that the words should be brought before the Court in any form like recording, scribing, describing or reproducing in oral evidence---Offending words were not brought into the notice or knowledge of Trial Court, therefore, holding accused guilty of offence under S. 298-A, P.P.C. was inconceivable---Prosecution failed to bring guilt of accused at home and case against him was not established---High Court in exercise of revisional jurisdiction set aside judgments passed by two Courts below and accused was acquitted of the charge---Revision was allowed in circumstances.

Rashid Mustafa Solangi for Applicant.

Sardar Ali Rizvi, A.P.-G. for Respondents.

2018 P Cr. L J 1393

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

BUDHO and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-79, D-81 and Criminal Jail Appeal No. D-84 of 2017, decided on 5th April, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that a sack containing fifty packets of charas weighing fifty kilograms was recovered from the diggy of the vehicle driven by accused, while co-accused persons were sitting on rear seat of the vehicle---Complainant (Investigating Officer) sealed the recovered charas in the same sack at the spot and arrested the accused---Prosecution, in order to bring home guilt of the accused persons, had examined complainant and recovery witness---Complainant and recovery witness both had fully supported the prosecution case---Said witnesses were subjected to lengthy cross-examination but nothing came on record to discredit their evidence---Said witnesses were unanimous on all material aspects of the case---No discrepancy or material contradiction was found in their evidence---Investigating Officer had sent entire charas to the Chemical Examiner for analysis without loss of time---Evidence of Excise Officials was fully supported by positive chemical report---Plea that huge quantity of fifty kilograms charas had been foisted had no justification---Evidence of prosecution witnesses was quite reliable, trustworthy and confidence inspiring---Objection of defence that there were material contradictions in the evidence of the prosecution had no force as the courts were supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities---In the present case, presence of accused being a driver in the car was not denied and it had been established by cogent evidence---Driver of the vehicle invariably raised the plea that he had no knowledge when narcotics or other contraband items were recovered from the vehicle, but depending upon the facts and circumstances of the case, contention of the defence was found without merit---Driver could not be absolved from the responsibility---Evidence showed that co-accused persons were sitting on the rear seat of the car and it was not a passenger bus---Co-accused persons had not raised the plea that they had hired the said car as taxi, as such they were equally responsible for committing the offence charged against them---Circumstances established that prosecution had proved its case against the accused persons---Appeal was dismissed.

Ameer Zeb v. The State PLD 2012 SC 380; Ikramullah and others v. The State 2015 SCMR 1002; Muhammad Hashim and another's case 2017 PCr.LJ 409; Mohsin v. The State 2017 MLD 674; Waqas Ali v. The State 2017 YLR 878; Amjad Ali v. The State 2012 SCMR 577 and Sardoor Khan v. The State 2013 YLR 1874 ref.

Ghulam Qadir v. The State PLD 2006 SC 61; Muhammad Shah v. State PLD 1984 SC 278; Said Shah v. State PLD 1987 SC 288; Nadir Khan v. State 1988 SCMR 1899; Shahrzada v. State 1993 SCMR 149; Shah Wali and another v. The State PLD 1993 SC 32 and Ella-ud-Din and another v. The State 2017 PCr.LJ 85 rel.

(b) Criminal trial---

----Witness---Police Official as witness---Reliance---Scope---Police witness is as good as other public witness---Police employed is the competent witness like any other independent witness and his testimony cannot be discarded merely on the ground that he was the police employee.

Muhammad Azam v. The State PLD 1996 SC 67; Muhammad Hanif v. The State 2003 SCMR 1237; Riaz Ahmed v. The State 2004 SCMR 988 and Naseer Ahmed v. The State 2004 SCMR 1361 rel.

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

----S. 156---Investigation by complainant---Scope---Complainant being a Police Officer was competent to investigate the case if he was witness of offence, and recovery could not be 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 said complainant.

Nazar Muhammad v. The State 2017 PCr.LJ 1399 rel.

(d) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 4 & 5---Delay in sending the samples of contraband for chemical analysis---Effect---In the present case, although, there was a minor delay in sending the sample parcels to the Forensic Science Agency but the Rules to that effect were directory and not mandatory---Nothing was available on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the Agency, remained intact.

Muhammad Sarfraz v. The State and others 2017 SCMR 1874 rel.

Muhammad Zaman Zaur for Appellants Nos. 1 and 2.

Syed Shahzad Ali Shah for Appellant No.3.

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

2018 P Cr. L J 1417

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

WAHID BUX alias BHUTTO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-332 and Confirmation Case No. D-20 of 2011, decided on 8th May, 2018.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Trial Court convicted accused and sentenced him to death, but acquitted co-accused persons by extending them benefit of doubt---Incident which had taken place at night at 02.00 a.m. inside the house of accused, was unseen---Prosecution had failed to examine the sole eye-witnesses who, soon after the incident, had informed the complainant about the incident on phone---Trial Court had convicted accused on hearsay evidence, not corroborated by any reliable, confidence inspiring and trustworthy evidence---Mere recovery of hatchet on the pointation of accused, was not sufficient, specially, when it was recovered after three days of the incident and was sent to Chemical Examiner with a delay of about three months, without explanation for such an inordinate delay---Statements of the prosecution witnesses, were also recorded with inordinate, unexplained delay---Evidence of witnesses, being hearsay, was not confidence inspiring---In absence of any direct and corroborative piece of evidence, Trial Court, was not justified to convict and sentence to death in circumstances---Prosecution having failed to prove its case against accused beyond shadow of reasonable doubt, conviction and sentence recorded by the Trial Court against accused, were set aside extending benefit of doubt---Accused, was ordered to be released forthwith, in circumstances.

Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gul v. Ziarut Gul 1976 SCMR 136; Muhammad Iqbal v. State 1984 SCMR 930; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Ashraf v. The State 2012 SCMR 419; Abdul Sattar v. The State 2012 YLR 580; Pathan v. The State 2015 SCMR 315; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Sher Muhammad v. The State 1984 PCr.LJ 1361 ref.

(b) Criminal trial---

----Benefit of doubt--- Single circumstance, which would create reasonable doubt in a prudent mind about the guilt of accused, would entitle the accused for its benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Tarique Ali Mirjat for Appellant.

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

2018 P Cr. L J 1455

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

ABDUL GHANI---Petitioner

Versus

IST JUDICIAL MAGISTRATE, TANDO ADAM and 3 others---Respondents

C.P. No. D-854 of 2017, decided on 15th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Exhumation of dead body, application for---Application of the complainant for exhumation of dead body to obtain material for DNA test was dismissed---Petitioner sought exhumation of dead body, recovered by police, which after completing formalities was buried in graveyard---Photographs of dead body were not satisfactory for identification as water animal had taken away the flesh of said dead body---Identification of the deceased through DNA was essential which was not possible without exhumation of dead body as DNA sample was not preserved by the concerned doctor while conducting post-mortem---Application was declined by the Magistrate on the ground that he had no jurisdiction because graveyard, where body was buried, did not fall within his jurisdiction---Petitioner filed application before the Trial Court, but the same was declined on the ground of jurisdiction---Petitioner, thereafter approached Judicial Magistrate, who also declined the application on the ground that offence had not been committed within his jurisdiction---Validity---Record showed that unknown body was found---Complainant party rushed to the concerned police station and attempted for verification of the deceased---Police failed to refer the matter for DNA test though it was specifically informed to them by the petitioner/complainant party that one murder case was pending---Police, in circumstances, was under obligation to get it confirmed that unknown dead body was of the deceased (victim of murder) by initiating process even at its own but record showed otherwise---Magistrate, in whose jurisdiction dead body was recovered, as well the Magistrate, in whose jurisdiction body was buried, were competent to exercise such jurisdiction but prima facie they had failed to exercised the same---Judicial Magistrate, in whose jurisdiction body was buried was directed by the High Court to order exhumation of body under his supervision---District Health Officer was also directed to constitute Medical Board and exhume the dead body as well to make all arrangements for referral of DNA test---Constitutional petition was allowed accordingly.

American Life Insurance Company (Pakistan) Ltd. v. Master Agha Jan Ahmed and others 2011 CLD 350 ref.

Muhammad Asif v. State 2017 SCMR 486 rel.

Mian Mumtaz Rabbani for Petitioner.

Sher Muhammad Leghari, State Counsel.

2018 P Cr. L J 1488

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

INAYATULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-539 of 2017, decided on 17th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.364-A, 377 & 34---Kidnapping or abducting a person under the age of ten, sodomy, common intention---Interim pre-arrest bail, confirmation of---Name of accused transpired in the FIR, with specific allegation that he with one more culprit took/kidnapped the victim under the pretext that; he was called by his father, then kept him confined illegally and subjected him to un-natural offence and then let him go; in such situation, it would be pre-mature to say that accused being innocent had been involved in the case falsely---Though no mark of violence was found on the person of the victim, but on medical examination the victim had been found to have been subjected to sodomy---None could involve an innocent person at the cost and honour of an innocent boy---Delay of one day in lodging of the FIR being natural, could not be resolved in favour of accused at such stage---Accused, was not able to explain his absconsion plausibly---No mala fide was apparent on the record which could indicate that accused had been involved in the case falsely, either by the Police or by the complainant party---Accused slipped away, while his bail application was being decided before the Trial Court---Bail application having no merit, was dismissed and interim order passed earlier, was recalled, in circumstances.

Imran Ashraf Panhwar for Applicant.

2018 P Cr. L J 1508

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Syed TALIB ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. 54 of 2017, decided on 26th April, 2018.

Criminal Procedure Code (V of 1898)---

----S. 540---Application of accused for re-calling of prosecution witness for re-examination---Said application was dismissed---Validity---Held, S. 540, Cr.P.C., was divided in two parts, first was discretionary in nature; while second was mandatory---Said provision of law, allowed the court for recalling and re-examining any witness already examined, but it was essentially subject to reaching to a just decision of the case---No witness was to be examined or re-examined merely to fill in the lacuna by the prosecution or the defence---In the present case, four prosecution witnesses had appeared and examined on oath and were subjected to lengthy cross-examination; and with an interval of more than two years, an application under S.540, Cr.P.C., was filed in the Trial Court for re-examining the witnesses, on the ground that previous counsel for accused, due to lack of interest, oversight and incompetence, could not ask some important questions, that would have been fatal to the prosecution case---High Court observed that in the larger interest of justice and in order to ascertain truth, revision was allowed to the extent of two main witnesses.

2002 SCMR 664; 2002 SCMR 468; 2001 SCMR 308; 2011 SCMR 713; 1998 SCMR 326; 1989 SCMR 397; 2004 PCr.LJ 699; 2005 PCr.LJ 638; 1991 PCr.LJ 877; 1992 PCr.LJ 729; 1988 PCr.LJ 1464; 1996 PCr.LJ 1439; 2017 PCr.LJ 294; 2016 PCr.LJ 1124; 2016 PCr.LJ 667; 1995 PCr.LJ 730; 2003 PCr.LJ 624; 2007 PCr.LJ 905; 2002 PCr.LJ 1501; 1981 PCr.LJ 1004; 2016 MLD 1937; 1992 MLD 378; 2006 MLD 327; PLD 2012 Isl. 35; PLD 1984 SC 95; PLD 2001 Lah. 463; PLD 2002 Kar. 411; PLD 1971 SC 709; PLD 1991 SC 430; 2016 YLR 62; 2009 YLR 486 and 2007 YLR 851 ref.

Agha Zafir Ali for Applicants.

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

2018 P Cr. L J 1522

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

MUHAMMAD JAVED---Applicant

Versus

VIIITH ADDITIONAL SESSIONS JUDGE, HYDERABAD and 2 others---Respondents

Criminal Revision Application No. S-151 of 2016, decided on 14th February, 2018.

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

----Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---Complainant had alleged that he was absolute and exclusive owner of the suit property being purchaser of the same and that the accused/respondent had taken unlawful possession of the subject property---Complaint was dismissed by the Trial Court on the ground that the dispute appeared to be of a civil nature as there was no allegation or evidence connecting the respondent to any qabza group or land mafia or property grabber, hence the matter would not attract the provision of the Illegal Dispossession Act, 2005---Validity---Record showed that sale deed in respect of the subject property was dated 7.4.2015 and the complainant claimed dispossession from the same on 15.4.2015, whereas, the complaint was filed on 10.9.2015 it would be unsafe to draw inference that the complainant was in fact in possession of the subject property---No dispute regarding the occupation of the subject property existed nor in respect of the title thereto---Matter, was to be adjudicated by the civil court of competent jurisdiction, and was not amenable to the jurisdiction pursuant to the Illegal Dispossession Act, 2005---Requirement/restriction of a land grabber/qabza mafia/land mafia was not a pre-requisite to invoke the provisions of the Illegal Dispossession Act, 2005---Circumstances established that the matter was of civil nature, which was not maintainable and as such the same was dismissed accordingly.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Shahabuddin v. The State PLD 2010 SC 725 and Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 ref.

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

----Ss. 3 & 4----Prevention of illegal possession of property etc.---Scope---No one could be evicted from a property save in accordance with due process of the law---Even a trespasser could not be dispossessed of land without due process of law.

Raza Muhammad and others v. The State PLD 1965 (W.P.) Karachi 637 rel.

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

----Ss. 3 & 4---Prevention of illegal possession of property etc.---Observations made in such like complaint---Scope---Observations of Court were of a tentative nature and were based entirely on the record available before the court---Such observations would not in any manner have any effect upon competent proceedings between the parties, wherein the title and/or occupancy rights of the subject property would be adjudicated.

Mian Taj Muhammad Keerio for Applicant.

Shahzado Saleem Nahlyoon, D.P.G. for the State.

2018 P Cr. L J 1547

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ABDULLAH---Applicant

Versus

The STATE---Respondent

Bail Application No. 1258 of 2017, decided on 9th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Gas Theft Control and Recovery Act (XI of 2016), Ss.15, 17 & 34---Theft of sui gas---Bail, refusal of---Accused was found stealing sui gas by using rubber pipeline through service/auxiliary line---Fact of theft went unshaken--- Two stoves of 24 nozzles, one 3-KVA Generator, 10 feet rubber pipe had been recovered from the hotel of accused---All said facts led to the conclusion that theft was being done at venue of occurrence---Accused, was rightly booked in the present case---No mala fide or enmity was shown against the complainant or Investigating Officer of the case---Bail, could not be allowed to accused, in circumstances.

Mrs. Azra Hammad for Applicant.

Malik Sadaqat Ali Khan, S.P.P. for the Complainant.

Ghulam Shabbir Baloch, ADAG for the State.

2018 P Cr. L J 1553

[Sindh]

Before Nazar Akbar, J

MUMTAZ KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 176 and 165 of 2006, decided on 3rd June, 2016.

Penal Code (XLV of 1860)---

----Ss. 395 & 34--- Dacoity, common intention--- Appreciation of evidence---Criminal history of accused had disclosed that he was involved in ten other cases---Accused appeared to be a hardened criminal and absconding---Station House Officer of the concerned Police Station had failed to arrest the accused despite sufficient time was given to him---Surety in the case of accused was the same person, who stood surety for different criminals in other cases---Said surety had furnished surety in the last mentioned FIR by submitting false and forged documents of a bus---Surety documents furnished by the surety in the case of accused, were the lease documents---Nazir of the court was directed by High Court to sell out the property furnished by surety within 15 days---High Court directed the office of Prosecutor General that in all the cases pending in the High court, CROs should be obtained on the first date of hearing and placed in the court file.

2018 P Cr. L J 1607

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Arshad Hussain Khan, JJ

ABID WALI KHOSO and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through DG NAB, Sindh and others---Respondents

Constitutional Petitions Nos. D-363, 364, 446, 467, 481, 487, 488, 504, 564, 795, 1308, 1372, 1422, 1573, 3272, 2135, 2065, 2066, 2067, 2068 and 1781 of 2017, decided on 15th March, 2018.

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

----Ss. 9(a)(v) & 14(c)---Assets beyond known sources of income---Onus to prove---Principle---Scope---Accused is presumed to be innocent unless proved otherwise---In a trial under National Accountability Ordinance, 1999 initial burden continues to be on prosecution and it is only when it has rendered a reasonable proof before Trial Court in respect of guilt of accused, onus shifts on accused to prove his innocence by showing that properties were acquired through lawful means.

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

----S. 497(1)---Bail, grant of---Preconditions---Liberty of person is prime consideration as envisaged by all laws---Only S. 497(1), Cr.P.C. prohibits release of accused in certain conditions---Such conditions must be proved by prosecution else every citizen has right of liberty and cannot be put in jail without reasonable grounds.

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

----Ss. 9(a)(iv)(vi) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Hardship case---Delay in conclusion of trial---Petitioners were arrested by National Accountability Bureau for causing embezzlement in government funds; they had been in custody since February, 2017 without conclusion of trial---Validity---Three other stakeholders were also there, in respect of alleged embezzlement, who should have been examined as they were interlinked with one another and nothing could be misappropriated or embezzled without their joint consent---Stakeholders were not examined and no recovery or assets were shown against petitioners---Out of 28 accused persons arrayed in National Accountability Bureau reference, 6 were in jail custody since February, 2017 and charge in the subject National Accountability Bureau reference was framed on 5-3-2018, after lapse of more than a year---No allegation was on record that adjournments were sought by petitioners or their counsel---No witnesses out of 16 witnesses was examined and recording evidence of prosecution would consume considerable time---No likelihood existed that trial would be concluded in near future in view of speed, velocity and pace of trial---Object of trial was to make an accused to face trial and not to punish an under-trial prisoner---Basic idea of trial was to enable accused to answer criminal proceedings against him rather than to rot him behind bars---Petitioners were entitled to expeditious access to justice which included a right to fair trial without any unreasonable delay--- Entire case of prosecution revolved around documentary evidence which was already in its possession and petitioners were no more required for further investigation---No likelihood of tampering of evidence by petitioners as same was already collected by National Accountability Bureau--- Bail was allowed in circumstances.

Sardar Amin Farooqui v. Chairman NAB and another 2014 PCr.LJ 186; Mst. Maya Fakhri v. The State SBLR 2014 Sindh 780; Abdul Aziz Qazi v. National Accountability Bureau through Chairman, Islamabad and 2 others 2012 MLD 777; Islamic Republic of Pakistan through Secretary, Ministry of Interior And Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A., Former President of Defunct National Awami Party PLD 1976 SC 57; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Brig. Retd. Aslam Hayat Qureshi v. The State 2002 MLD 695; Aga Jehanzeb v. N.A.B. and others 2005 SCMR 1666; Ayaz Younus v. The State through Chairman National Accountability Bureau and another 2006 MLD 452; Syed Qasim Shah v. The State 2009 SCMR 790; Ali Anwar Ruk v. NAB through Chairman 2015 YLR 216; Syed Mehdi Ali Shah v. NAB Constitutional Petition No. D-4047/2016; Shahnawaz Soomro v. Federation of Pakistan Constitutional Petition No. D-512/2017; Sindh High Court Bar Association v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Jamil A. Durrani v. The State 2002 MLD 1344; Tariq Shahbaz v. Chairman, NAB and others 2008 YLR 2561; Israr Khan v. National Accountability Bureau (NAB) Sindh through Director General 2016 PCr.LJ 1298; Mohammad Azam Brohi and others v. The State through Chairman, National Accountability Bureau and others 2016 PCr.LJ 1417; Ali Ahmed v. NAB C.P. No. D-3032 of 2013; Abdul Khaliq v. State 1996 SCMR 1553; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585; Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564; Saeed Ahmed v. State 1995 SCMR 1070; Ejaz Akhtar v. State 1978 SCMR 64 and The State and others v. M. Idrees Ghouri and others 2008 SCMR 1118 ref.

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

----Ss. 9(b) & 16(a)---Bail, grant of---Delay in conclusion of trial---Heinousness of offence---Effect---Heinousness of offence or embezzlement of huge amount is not a good ground for refusal of bail on ground of non-conclusion of case within statutory period---Provision of S. 16(a) of National Accountability Ordinance, 1999 circumscribes a limit for conclusion of trial within 30 days from its commencement.

Riazat Ali Sahar for Petitioner in custody Mirza Qurban Ali Baig (in C.P. No.D-2065 of 2017).

Riazat Ali Sahar for Petitioner in custody Aijaz Ali Khaskheli (in C.P. No.D-2066 of 2017).

Riazat Ali Sahar for Petitioner in custody Zulfiqar Ali Khaskheli (in C.P. No.D-2067 of 2017).

Riazat Ali Sahar for Petitioner in custody Aftab Ali Khaskheli (in C.P. No.D-2068 of 2017).

Nasrullah Kori for Petitioner in custody Abid Wali Khoso (in C.P. No.D-1372 of 2017).

Ishrat Ali Lohar for Petitioner in custody Pervez Dawood Rahpoto (in C.P. No.D-1573 of 2017).

Tarique Aziz Memon for Petitioner Orangzeb Samo present on interim pre-arrest bail (in C.P. No.D-363 of 2017).

Tarique Aziz Memon for Petitioner Muhammad Anwar present on interim pre-arrest bail (in C.P. No.D-364 of 2017).

Tarique Aziz Memon for Petitioner Sarfaraz Ali Soomro present on interim pre-arrest bail (in C.P. No.D-504 of 2017).

Tarique Aziz Memon for Petitioner Amjad Ali Shah present on interim pre-arrest bail (in C.P. No.D-3272 of 2017).

Riazat Ali Sahar for Petitioner Ghulam Hussain Abbasi present on interim pre-arrest bail (in C.P. No.D-467 of 2017).

Riazat Ali Sahar for Petitioner Mumtaz Ali present on interim pre-arrest bail (in C.P. No.D-1781 of 2017).

Mazhar Hussain Kalwar for Petitioner Imran Ahmed present on interim pre-arrest bail (in C.P. No.D-446 of 2017).

Mazhar Hussain Kalwar for Petitioner Abdul Salaam Malik present on interim pre-arrest bail (in C.P. No.D-487 of 2017).

Ayaz Hussain Tunio for Petitioners Ali Nawaz and Junaid Aziz Jatoi present on interim pre-arrest bail (in C.P No.D-481 of 2017).

Ayaz Hussain Tunio for Petitioner Kashif Aziz Jatoi present on interim pre-arrest bail (in C.P. No.D-504 of 2017).

Muhammad Aslam Bhatti for Petitioner Khursheed Anwer Qureshi present on interim pre-arrest bail (in C.P. No.D-481 of 2017).

Muhammad Asif Shaikh for Petitioner Danish Bughio present on interim pre-arrest bail (in C.P. No.D-488 of 2017).

Ashfaque Nabi Kazi for Petitioner Abdul Rasheed Lund present on interim pre-arrest bail (in C.P. No.D-564 of 2017).

Ghulam Asghar Mirbahar for Petitioner Aleemullah present on interim pre-arrest bail (in C.P. No.D-795 of 2017).

Zulfiqar Ali Abbasi for Petitioner Nizamuddin Shahani present on interim pre-arrest bail (in C.P. No.D-1308 of 2017).

Zulfiqar Ali Abbasi for Petitioner Syed Malook Shah present on interim pre-arrest bail (in C.P. No.D-1422 of 2017).

Kashif Hussain Agha for Petitioner Muhammad Khalid present on interim pre-arrest bail (in C.P. No.D-2135 of 2017).

Lutfullah Arain, D.A.G. for the Federation of Pakistan.

Jangu Khan Rajput, Special Prosecutor NAB along with Investigating Officer Aslam Pervaiz Abro, NAB for NAB.

2018 P Cr. L J 1676

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD FAROOQ---Applicant

Versus

SANA RIZWAN and others---Respondents

Criminal Rev. Application No. 55 of 2016, decided on 3rd November, 2017.

Criminal Procedure Code (V of 1898)---

----Ss.94, 96, 435 & 561-A---Constitution of Pakistan, Art. 13(b)---Application seeking direction from court to accused to produce original sale agreement---Protection against double punishment and self-incrimination---Applicant, applied under S. 94, Cr.P.C., seeking direction from the Trial Court to accused persons to produce original sale agreement before the Trial Court for the purpose of investigation and verification---Said application was dismissed by the Trial Court---Validity---Question before the court was that as to whether accused could be compelled to produce any document or material in his possession under S.94, Cr.P.C.---One of the fundamental canons of the criminal jurisprudence was that accused should not be compelled to incriminate himself---Said principle was enshrined in the Islamic Jurisprudence and was adopted by english legislature and jurists---In Sharia, accused could not be compelled to give confession and had the right to remain silent---Coerced confession or confession taken under force was not admissible---Strict requirements for acceptance of confession in Islam stemmed from the concept that there was a higher justice than the justice in the courts---If accused was truly guilty, but his guilt could not be fairly proven in court, he would still had to answer to God---Hidden truth, was considered to be a matter between the individual and his Creator---Said principle, in course of time, developed into its logical extensions by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents---Not only the principle of jurisprudence but also the Constitution had provided protection to an accused that he should not be compelled to become witness against himself---Section 94, Cr.P.C., no doubt empowered a criminal court to compel production of any document or other things in possession of any person for the same purpose, a warrant could be issued under S.96, Cr.P.C.; however, in view of the settled principle of jurisprudence and under provision of Art.13(b) of the Constitution, such directions could not be issued to an accused against whom an enquiry or investigation was being carried out and/or trial was being held---Principle of protection of self-incrimination, no doubt was necessary to protect the innocent individual, but it equally demanded an active and effective investigation on unverified suspicion---If criminal trial would fail due to the poor and defective investigation, the prosecution was responsible for the acquittal of culprit---Trial Court had rightly dismissed the application filed by applicant under S. 94, Cr.P.C., and accused could not be compelled to produce any document or thing, which could go against him.

Mirza Sarfaraz Ahmed along with Ms. Saeeda Siddiqui for Applicant.

Aamir Mansoor Qureshi for Respondents Nos. 1 and 2.

Muntazir Mehdi, Assistant Prosecutor-General, Sindh for the State.

2018 P Cr. L J 1694

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

IQBAL Z. AHMED and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos. D-1982, D-1824 of 2016, Petitions Nos.D-6126 and D-95 of 2017, decided on 22nd November, 2017.

(a) Interpretation of statutes---

----Duty of court to interpret law---Scope---Court's role of interpretation of statute only arises when statute, is to a certain extent, either unclear or ambiguous or is prima facie in violation of Constitution---Court, in such case, is to interpret that piece of legislation by trying to ascertain intent of legislature in passing that legislation---Court has absolutely no authority or power to substitute its views for those intended by legislature simply because court disapproves a particular law and the way in which that law is being applied.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

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

----S. 24---Arrest---Scope---Filing of reference---Effect---Chairman NAB becomes functus officio after the reference is filed and has no longer power of arrest, except in respect of persons for whom he has already issued an arrest warrants prior to filing of reference which remains unexecuted or in respect of persons for whom he is inquiring/investigating with a view to filing a supplementary reference.

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

----S. 18(a), (g)---Reference, filing of---Effect---Once reference is filed, trial and its conduct is in the hands of Accountability Court

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

----S. 18---Criminal Procedure Code (V of 1898), S. 190---Offence, cognizance of---Jurisdiction---After complaint is lodged with National Accountability Bureau, a complaint verification stage is undertaken to seek if prima facie complaint is genuine, if found to be so, Chairman National Accountability Bureau may authorize an inquiry (section 18(c), (d) and (e) of National Accountability Ordinance, 1999)---If after inquiry, Chairman National Accountability Bureau is satisfied that there is a prima facie case, he may upgrade inquiry into an investigation which may be converted into a reference and is filed before Accountability Court once Chairman is satisfied that requirements of S. 18(g) of National Accountability Ordinance, 1999 have been made out--- Accountability Court then takes cognizance of same under S. 18(a) of National Accountability Ordinance, 1999 and cannot add any other accused on its on motion unlike ordinary criminal cases which allow Trial Court to do so under S. 190, Cr.P.C.

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

----Ss. 9(b) & 17(a)---Criminal Procedure Code (V of 1898), Ss. 91 & 204--- Bond for appearance--- Issuance of process---Summons/Warrants--- Petitioners/accused were summoned by Accountability Court for facing trial--- Plea raised by accused persons was that as no warrants of arrest was issued against them by Chairman National Accountability Bureau therefore, they were liable to execute bond under S. 91, Cr.P.C. for their appearance---Validity---Provisions of S. 9(b) of National Accountability Ordinance, 1999 made offences as non-bailable and Accountability Court could not summon any accused for taking a bond---Only way of calling accused by Accountability Court was by issuing non-bailable warrants and same was in consonance with S. 9(b) of National Accountability Ordinance, 1999 which was legislative intent behind the same---Any attempt to ask for executing a bond under S. 91, Cr.P.C. instead of applying for pre-arrest bail before High Court at time when reference was filed was violation of settled principles of law---What could not be done directly through law, same could not be done indirectly through other means---Taking of bond under S. 91, Cr.P.C., when intent of S. 9(b) National Accountability Ordinance, 1999 was that in order to avoid arrest at time when reference was filed or even during inquiry and investigation of offence under National Accountability Ordinance, 1999, accused should have sought pre-arrest bail---Accountability Court under National Accountability Ordinance, 1999 and Common Law could not summon an accused other than by way of non-bailable warrants, once a reference was filed before Accountability Court by National Accountability Bureau under National Accountability Ordinance, 1999--- Provision of S. 91, Cr.P.C., was inapplicable to National Accountability Bureau references filed under National Accountability Ordinance, 1999 so far as an accused was concerned---Constitutional petition was dismissed in circumstances.

Reham Dad v. Syed Mazhar Hussain Shah 2015 SCMR 56; Messrs Tank Steel and Re-Rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. PLD 2001 Kar. 344; Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249; Muhammad Ijaz v. Nadeem and 3 others PLD 2006 Lah. 227; Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; Sarwar and others v. The State 2014 SCMR 1762; Writ Petition No.3506-P of 2015 on 05.11.2015 in the case of Prof. Dr. Abdur Rahim Khan and another v. Chairman, NAB and others; Writ Petition No.255-P of 2016 in the case of Masoom Ahmed Awan v. Chairman, NAB and others on 16.02.2016; Zahoor Ahmed Sheikh and others v. Chairman NAB, Islamabad and others PLD 2007 Kar. 243; Maqbool Ahmed Sheikh and others v. The State 2014 YLR 2644; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Sardar Ahmed Siyal and others v. NAB through Chairman and 4 others 2004 SCMR 265; Tariq Masood v. Director General, NAB Lahore and another PLD 2012 Lah. 287; Luqman Ali v. Hazaro and another 2010 SCMR 611; Shaukat Rasool v. The State and another PLD 2009 Lah. 590; Nazeer Ahmed and others v. The State Cr. Accountability Revision Application No.75 of 2002; State through Chairman NAB v. Zahoor Ahmed Sheikh Civil Appeal No.1152 to 1157 of 2007; Syed Sohail Hassan v. Director General , NAB (Sindh) and others C.P. No.D-2382/2016; Syed Sohail Hassan v. DG NAB dated 16-12-2016 in C.P.D. 2382/16; Zia-ur-Rehman Sajid v. Muhammad Aslam and another 2005 PCr.LJ 1706; Noor Ahmed v. Ghulam Mustafa and another 2009 YLR 1414; Muhammad Ashraf v. The State and another 2017 PCr.LJ 721; Olas Khan v. Chairman NAB in Civil Petitions Nos.1885 and 2259 of 2017 dated 04-08-2017 PLD 2018 SC 40; Rai Mohammed Khan v. NAB 2017 SCMR 1152; Nazir Ahmed v. The State 1990 MLD 2084 and Socha Gul v. State 2015 SCMR 1077 ref.

Zaigham Ashraf v. State 2016 SCMR 18 rel.

Farooq H. Naek for Petitioner No.1 (in C.P. No. D-1982 of 2016).

Farooq H. Naek for Petitioner No. 2 (in C.P. No. D-6126 of 2017).

Muhammad Azhar Siddiqui and Yaseen Azad for Petitioners Nos. 3, 4, 5 and 6 (in C.P. No. D-95 of 2017).

Muhammad Azhar Siddiqui and Mian Shabir Asmail for Petitioner No. 7 (in C.P. No. D-1824 of 2016).

Waqar Qadeer Dar, Prosecutor-General NAB, Syed Amjad Ali Shah, Deputy Prosecutor-General NAB, Muhammad Altaf, Special Prosecutor, NAB and Munsif Jan, Special Prosecutor NAB (for Respondents).

Salman Talibuddin, Additional Attorney General and Ashfaq Rafiq Janjua, Assistant Attorney General for Pakistan (for Respondents).

2018 P Cr. L J 1

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

Rao ISHTIAQ KHURSHID---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 257 and Murder Reference No. 32 of 2013, heard on 21st March, 2017.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of deceased---Ocular account was furnished by three witnesses including real brother of the deceased---Record showed that deceased was brought to hospital in injured condition, where he succumbed to injury on following day---Complainant being uncle of the deceased recorded complaint about the occurrence but name of accused and motive were missing in the complaint---Name of the accused as well as the motive were introduced subsequently through a supplementary statement and in the statements of the witnesses recorded under S. 161, Cr.P.C.---Complainant, in his examination-in-chief named the accused as the one who fired fatal shot on the deceased within his view; he admitted that at the time of recording of complaint, he was not aware of the name of the accused---Eyewitness stated that he and real brother of the deceased were not acquainted with accused before occurrence, whereas brother of deceased/witness named the accused in his examination-in-chief while relating graphic details of the incident---Said witness stated that he had seen the accused before the occurrence and also seen him at the time of previous altercation of the accused and deceased---Prosecution had alleged that brother of deceased could not share the name of accused with the complainant for being in a different vehicle and subsequently pre-occupied to manage blood etc. and by that time he had the opportunity to inform the complainant, complaint was already chalked out---All the three eye-witnesses claimed to have witnessed the occurrence and being so, a most natural and prompt reaction on part of the complainant was to inquire the name of accused from the injured or his brother, if at all, he was present there---No reason existed for the real brother of deceased to withhold the name of accused from other family members---Explanation furnished by real brother of deceased that while going to the hospital he was in a different vehicle thus could not tell the name of accused to the complainant, was not acceptable---Said witness could easily share said information before the family set out for the hospital or alternatively when they reached there---Hypothesis of introduction the name of accused through a supplementary statement of even date was far from being real---Medico-Legal Certificate showed that the deceased in injured condition was received in hospital under police docket at 2.50 a.m.---Medical Officer initially attended the deceased and conducted medical examination at 2.50 a.m.---Complaint was recorded at 3.20 p.m.---Deceased succumbed to injury on following day at 9.00 p.m.---No reference to the accused was found in the brief facts of the case annexed with the inquest report---If the witnesses had named the accused in their statements recorded under S. 161, Cr.P.C. or the complainant introduced the name in the supplementary statement, such exercise was undertaken much late in the day, seemingly, in the wake of consultation and deliberation---Negative Forensic Report was yet another dilemma confronting the prosecution---Circumstances established that prosecution had not been able to prove its case against the accused beyond reasonable doubt---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 161--- Supplementary statement--- Evidentiary value---Supplementary statement was essentially a statement under S. 161, Cr.P.C. but it could not be equated with the First Information Report nor read in extension thereof.

Fakhar Hayat Awan for Appellant.

Malik Shaukat Hayat Awan for the Complainant.

Mirza Muhammad Usman, Deputy Prosecutor-General, Punjab with Zafar, S.-I. for the State.

2018 P Cr. L J 31

[Lahore]

Before Abdul Sattar, J

MUHAMMAD YAQOOB BUTT---Petitioner

Versus

DEPUTY COMMISSIONER HAFIZABAD and 2 others---Respondents

W. P. No. 58466 of 2017, decided on 21st August, 2017.

Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3--- Habitual criminal--- Preventive detention--- Principle---Petitioner was arrested and put under preventive detention on the ground that he was a habitual criminal---Validity---Mere involvement of someone in one criminal case could not become basis to be dubbed as habitual offender--- Hundreds of people involved in crimes, either on bail or otherwise, were roaming on streets but not all of them were thrown in jail by executive officers under preventive detention laws---Possibility of misuse or arbitrary use of such power by executive authorities could not be ruled out---High Court set aside detention order passed by Authorities as same was illegal, void ab initio and contrary to guarantees provided to citizens by the Constitution---Constitutional petition was allowed in circumstances.

Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others 2016 PCr.LJ 424; Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20; Abdul Rasheed Bhatti v. Government of Punjab through Secretary and 6 others PLD 2010 Lah. 468; Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home 1994 SCMR 1532 and Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur 1999 PCr.LJ 2014 ref.

Muhammad Jawad Joiya for Petitioner.

2018 P Cr. L J 54

[Lahore]

Before Ahmad Raza Gilani, J

ABDUL HAMEED---Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE and 2 others---Respondents

Writ Petition No. 53095 of 2017, heard on 20th July, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154 & 200---Petitioner was aggrieved of the order passed by Ex-Officio Justice of Peace declining to issue direction to Officer-in-charge of police station for registration of case against respondent---Even if one was not successful in getting a criminal case registered under S. 154, Cr.P.C., which though was mandatory on the part of Officer in charge of police station, if from the facts and circumstances of the case, a cognizable offence was made out, even then, aggrieved person was not left remediless and equally efficacious remedy in the form of filing complaint in terms of S. 200, Cr.P.C. was provided---Petitioner was provided with equally efficacious remedy under the law---High Court declined to go into disputed and contested matters between parties when it was exercising Constitutional powers under Art. 199 of the Constitution---Constitutional petition was dismissed in circumstances.

Nandamuri Anandayya's case AIR 1915 Madras 312; Emperor v. Khwaja Nazir Ahmad AIR 1945 (PC) 18; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 and Muhammad Nawaz v. Noor Muhammad and others PLD 1967 Lah. 176 ref.

2018 P Cr. L J 77

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

PERVAIZ HAIDER KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 576 of 2015, heard on 16th February, 2017.

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

----S. 367---Appreciation of evidence---Judgment, contents of---Accused was charged for misappropriation amount of Rs. 38,05,241/----Trial Court had given no reason for its finding except stating that the prosecution had produced two applications in which, the accused had admitted his guilt and he had deposited Rs. 14,00,000/- in the Government treasury which tantamounted to confession on his part---Defence took the plea that judgment delivered by the Trial Court was in violation of S. 367 Cr.P.C. as the court had not evaluated the evidence---Statement of accused recorded under section 342 Cr.P.C. showed that he denied the claim of prosecution that he had deposited Rs. 14,00,000/- in the treasury and disowned the application about his confession---Trial Court was bound to appreciate the entire evidence and determine as to whether the claim of the prosecution was correct and proved---Trial Court had given brief summary of the depositions of the prosecution witnesses without evaluating them in the light of the cross-examination conducted by the accused---Circumstances established that judgment delivered by Trial Court did not meet the legal requirements, therefore, was not sustainable---Appeal was allowed, impugned judgment was set aside and case was remanded for re-writing of the judgment in accordance with law.

Abdul Sattar v. Sher Amjad and another 2004 YLR 580; The State v. Abba Ali Shah alias Abba Umer and another PLD 1988 Kar. 409; Gul Muhammad v. Kaimuddin 2012 YLR 218; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173; Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation PLD 1998 Lah. 100 and Muhammad Ismail and another v. The State 2004 PCr.LJ 1915 rel.

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

----S. 367---Judgment, contents of---Ingredients---Judgment to consist of three elements, namely, the points for determination; the decision thereon and the reasons for such decision.

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

----S. 367--- Judgment, contents of--- Section 367, Cr.P.C. was mandatory and not directory.

Abdul Rashid Munshi and 3 others v. The State PLD 1967 SC 498; Sahab Khan and 4 others v. The State and others 1997 SCMR 871; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698 and Khalid Mehmood v. The State 2004 PCr.LJ 984 rel.

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

----Ss. 367 & 537---Judgment, contents of---Non-compliance of S. 367, Cr.P.C. was a defect which was not curable under S. 537, Cr.P.C. and render the judgment nugatory as it would amount to an illegality which prejudiced the case of the accused.

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

Shakeel Javed Chaudhry for Appellant.

Muhammad Suleman Bhatti for the Complainant.

Muhammad Sarfraz Khan Khichi, D.D.P.P. for the State.

2018 P Cr. L J 109

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

MUHAMMAD TARIQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1628 of 2011, heard on 17th February, 2016.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---"Possession of narcotic"---Elements---Alleged recovery of narcotics, was not made from the direct physical and conscious possession of the accused, but was recovered from the house of acquitted co-accused---Mere presence of accused, would not be sufficient to connect accused with alleged narcotic substance---Prosecution had to prove two elements of possession i.e. (i) corpus, the element of physical control; and (ii) animus or intent with which such control was exercised and not merely the physical presence of accused in the house, the possession could not be inferred---Prosecution had not established connection with the parcel of sample deposited with the office of Chemical Examiner; it was unsafe to base conviction of accused on the basis of testimony of prosecution witnesses which could not be said to be trustworthy on the facts and circumstances of the case---Prosecution had failed to prove the guilt of accused beyond reasonable doubt---Trial Court, was not justified in convicting accused for committing the offence without any legal evidence worthy of credit available on record---Inherent illegality in the matter, being present, conviction of accused could not be upheld---Findings of the Trial Court were set aside---Accused was acquitted of the charge, and was directed to be released, in circumstances.

Azhar Ilyas Bajwa, Maqbool Ahmed Qureshi, Defence counsel for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

2018 P Cr. L J 132

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD AYYAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 706 of 2016, heard on 18th January, 2017.

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

----S. 7---Determination of age of accused---Scope----Whenever a question arose as to whether the accused was a Juvenile offender and was subject to the jurisdiction of a Juvenile Court, the court was required to hold an inquiry into the matter to seek the truth---Court was not only to take into consideration the documents produced by the parties, but where necessary, record statements of the witnesses and requisition medical report, including clinical and radiological examination of the accused.

Real Value Appliances Ltd. v. Canara Bank (1998) 5 SCC 554; AIR 1998 SC 2064 and Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 rel.

(b) Juvenile Justice System Ordinance (XXII of 2004))---

----S. 7---Determination of age---Claim of being minor---Scope---Raising of such claim by accused belatedly---Effect---Adverse inference could be drawn against the accused.

Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145 rel.

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

----Ss. 302, 311, 114 & 34---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Constitution of Pakistan, Art. 10-A---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, abettor present when offence is committed, common intention---Determination of age of accused person claiming himself to be minor---Fair trial---Accused contended that he was not 18 years old at the time of alleged occurrence---Trial Court, dismissed the application of accused after relying on the CNIC and electoral rolls of the accused and concluded that the accused was a registered voter and according to the Form issued by the District Election Officer, his age was more than 18 years at the time of occurrence---Trial Court declined the request of accused to conduct his ossification test for the determination of his age---Record showed that accused had submitted a photocopy of his school leaving certificate to support his claim for minority which was discarded on the ground that the original had not been produced---Validity---National Identity Card and the entries in the NADRA Database carried weight and held field unless they were rebutted---Entries in the electoral rolls were made on the basis of National Identity Card/NADRA Database, as such had equal force---Provisions of S.7, Juvenile Justice System Ordinance, 2000 obligated the court to seek the opinion of the Medical Expert because the legislature itself did not consider their data as a conclusive evidence of the age of a person---Medical test of the accused to determine his age was mandatory under the Ordinance---Trial Court, therefore, denied right of fair trial to the accused by refusing his request for ossification test---Impugned order was set aside and case was remanded with the direction to decide the application of accused afresh after getting ossification test done by duly constituted Medical Board and taking into consideration all the documents produced by the parties.

Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 rel.

Qazi Saddar-ud-Din Alvi for Petitioner.

Mian Abdul Qayyum, Assistant Prosecutor-General for Respondents.

2018 P Cr. L J 156

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD SUFYAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 1616 of 2010, decided on 22nd November, 2016.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Prosecution case was that accused party had attacked upon the complainant party, murdered the deceased and injured the complainant---Complainant/injured witness had explained the motive by stating that a shop, which was their property, in respect whereof, they had instituted a suit and obtained a stay order in their favour, was the reason of the offence---No documentary evidence with regard to the shop could be produced by the complainant party nor they could establish their possession of the shop in question---Defence consistently rebutted the said stance of the complainant side by maintaining that disputed shop was in possession of acquitted accused and his son, wherein they traded being owner thereof---Defence tendered documentary evidence in support of their contention---Trial court also observed in its judgment that accused party was in possession of the said shop on the day of alleged occurrence---Circumstances established that prosecution had not succeeded in proving that particular aspect of the case, hence motive had certainly gone un-established.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused armed with deadly weapons assaulted on complainant party, as a result of which, one person of complainant party died and three were injured---Ocular account was furnished by eyewitnesses comprising of complainant and injured---Presence of said witnesses at the spot could not be doubted as the accused side admitted their presence at the hot-spot---Said witnesses had categorically alleged in their statements that accused-appellant gave a churri blow at the left armpit and co-accused-appellant clubbed his dagger into the abdomen of deceased---Said fact was corroborated by the postmortem report of the deceased---Medical Officer, who examined the injured persons, did not label the injuries a product of fabrication or by friendly hands---Both the parties were related inter-se as evidenced by the statement of complainant; they were known to each other for years---Occurrence took place in the daylight, hence, mistaken identity was not possible---Events had been narrated quite naturally by the witnesses---Injuries sustained by the witnesses during the occurrence showed their presence at the spot---Eye-witnesses stuck to the FIR and remained consistent in accusing the accused-appellants of committing murder of the deceased and causing injuries to injured---Nothing had been brought out in cross-examination of eye-witnesses to show that their presence at the place of incident was doubtful or they had falsely involved the accused-appellants---Witnesses had reasonably explained their presence at the spot---Ocular account was fully corroborated by the medical evidence---Circumstances established that ocular account was believable, having been tendered by truthful and reliable witnesses and the medical evidence--- Appeal against conviction was dismissed accordingly.

Hafiz Ghulam Shabbir assisted by Sher Afgan Asadi for Appellants.

Rana Tassawar Ali Khan, Deputy Prosecutor-General Punjab for the State.

2018 P Cr. L J 354

[Lahore]

Before Muhammad Yawar Ali, ACJ and Tariq Saleem Sheikh, J

JAHANZAIB KHAN---Appellant

Versus

SPECIAL JUDGE CNS COURT, LAHORE and another---Respondents

Criminal Appeal No. 70907 of 2017, decided on 18th September, 2017.

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

----S. 9(c)--- Criminal Procedure Code (V of 1898), S. 539-B---Possession of narcotic substance---Appreciation of evidence---Local inspection---Scope---Prosecution case was that accused persons were arrested with 14.400 kilograms of charas and 9.600 kilograms of opium---Accused persons had concealed some of the narcotics in the secret cavities of the rear bumper of the car---Prosecution had brought four witnesses to prove the charge against the accused persons---Car, which was allegedly used for drug trafficking was also produced---Accused took plea that the prosecution case was false and no narcotics were recovered from the car---Accused emphasized on the fact that there were no secret cavities in the car in which the narcotics could be hidden, more particularly its rear bumper---Investigating Officer was cross-examined on the said point---While the cross-examination of Investigating Officer was in progress, the accused filed application under S. 539-B, Cr.P.C. before the Trial Court requesting the Judge to inspect the rear bumper of the car to verify whether it had any secret cavities---Trial Court dismissed the said application, holding that there was no need for any such inspection---Validity---Record showed that the Trial Court had simply stated that car from which the narcotics were allegedly recovered was parked outside the court-room and defence counsel was at liberty to inspect the same in the opinion of the court, it was not necessary to inspect the same---Record transpired that the precise defence plea was that the prosecution story was concocted and the narcotics were foisted on the accused persons---Since the prosecution had alleged that some packets of the contraband substance were recovered from the secret cavities of the car's bumper, the accused sought to demonstrate that no such cavities existed---Inspection of the car in general and its bumper in particular was imperative for a just decision of the case---Denial of an opportunity to the accused to make the demonstration would be a denial of his Fundamental Right to a fair trial---High Court observed that Trial Court was obligated to make inspections under S. 539-B, Cr.P.C. personally and could not delegate his powers to any body by appointing a commission or otherwise---Trial Court should have recorded a memorandum of any relevant fact observed at such inspection which should form part of the file---Appeal was allowed by accepting the application filed by accused in circumstances.

Ch. Sajid Mehmood v. Inspector-General of Police, I.C.T. Islamabad and 3 others 2015 YLR 81 rel.

Nasir Khan Afridi for Appellant.

Zafar Iqbal Chohan, Special Prosecutor, ANF for the State.

2018 P Cr. L J 372

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

MUHAMMAD BOOTA and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 1764 and Murder Reference No. 531 of 2011, decided on 26th October, 2017.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah---Appreciation of evidence---Sentence, reduction in---Occurrence, with all its necessary details was reported to Police without an amount of unnecessary delay---Prompt reporting of incident of murder, in the absence of some exceptional circumstances, excluded the possibility of element of fabrication or concoction of facts and false implication---In the present case, three witnesses received injuries during the occurrence---Such injuries, in the absence of some exceptional circumstances, were generally regarded as stamp of presence of said witnesses at the crime scene---All said witnesses, were not only residents of same vicinity, but were inmates of the house where occurrence had taken place---Said feature of the case made the said prosecution witnesses as natural witnesses of the occurrence---All said witnesses unanimously held the accused persons responsible for having caused injuries on the person of the two deceased as well as the injured persons---Occurrence had taken place in the broad daylight and in the heart of the village---No imagination of the occurrence having remained unwitnessed could be drawn in circumstances---No question of any mistaken identity existed---No material was on record, which could give rise to the possibility of false implication or justification for substitution of real culprits---Witnesses remained unshaken and stood steadfast in cross-examination---Eye-witnesses besides being natural, their testimony was found to be trustworthy and rang true and was not doubtful---Ocular account was duly supported by medical evidence---No crime empties were recovered during spot inspection; report of Forensic Science Laboratory, was only to the effect that the weapons were in working condition which was inconsequential---Guilt of accused persons, was well-established from the ocular account, furnished by the witnesses who narrated straightforward and trustworthy details of the occurrence---No legitimate exception regarding the finding of the Trial Court, except the quantum of sentence, could be taken in circumstances.

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

----S.302(b)---Criminal Procedure Code (V of 1898), Ss.367(5) & 374---Qatl-i-amd---Sentence, quantum of---Sentence of death was normal penalty of murder, but provisions of S.367(5), Cr.P.C., was to be read in conjunction with S.302, P.P.C.---Accused, in the present case, having been convicted under S.302(b), P.P.C., it would be in the fitness of things to restrict only to that extent---Section 302(b), P.P.C., was punishable with two alternative sentences---Record had revealed that though at the time of the registration of the FIR the prosecution came forward with the specific motive and termed two incidents having taken place on the preceding day of the occurrence, yet in support thereof, no confidence inspiring evidence was led---Motive portrayed by the prosecution had no truth in it---Failure to prove the motive itself warranted to have resort to the alternate sentence of imprisonment for life---None of accused persons was attributed any specific injury---Since the fatal injuries could not be ascribed to a specific person with certainty, it would not be appropriate to award maximum sentence of death to any of the accused persons---Features of the present case could best be termed as sufficient extenuating circumstances warranting the infliction of alternate sentence of imprisonment for life---While dealing with Reference under S.374, Cr.P.C., High Court was empowered either to confirm the sentence or to pass any other appropriate sentence warranted by law---High Court had ample jurisdiction to annul the conviction and to convict accused of any offence for which Sessions Court might have convicted him---Accused persons were convicted under S.302(b), P.P.C., read with S.149, P.P.C., on two counts and sentenced to undergo imprisonment for life on each count; both counts would run concurrently with benefit of S.382-B, Cr.P.C.---With such modifications in the impugned judgment of the Trial Court, criminal appeal was dismissed.

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; Muhammad Sharif v. The State PLD 2009 SC 709; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Bux v. Abdul Aziz and others 2010 SCMR 1959; Allah Dad and another v. The State 1995 SCMR 142; Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 and Muhammad Tashfeen and others v. The State and others 2006 SCMR 577 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Such doubt, must be reasonable enough, so as to attract every prudent mind having sufficient legal acumen and must not be artificially stretched with the sole purpose of passing a judgment of acquittal only.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Administration of justice---Court while making appraisal of evidence and pronouncing a final judgment, must not lose sight of the fact that it owes heavy duty towards the legal heirs of the victims as well as obliged to administer justice---Court was expected to have resort to more balanced and cautious approach while deciding fate of a case moreso entailing capital sentence.

Muhammad Ahsan Bhoon for Appellants.

Ch. Sajid Ali Bul for the Complainant.

Muhammad Waqas Anwar, Deputy Prosecutor-General for the State.

2018 P Cr. L J 408

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

USMAN BIN MEHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 69371-B of 2017, decided on 3rd October, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21 & 24---Cyber-crime---Bail, refusal of---Case not falling within prohibitory clause of S. 497, Cr.P.C.---Accused was arrested on allegation that objectionable material was generated by cell-phone number subscribed by accused---Plea raised by accused was that he was entitled to concession of bail as offences Scheduled were non-bailable and did not attract bar contained under S. 497, Cr.P.C.---Validity---Held, though bail in offences punishable with less than ten years of imprisonment was ordinarily granted as a rule, however, such concession was to be extended having regard to facts and circumstances of each case---Court, in appropriate cases, could justifiably depart from such rule to deny the favour---Allegation against accused, supported by technical evidence was that he, by betraying trust reposed by prosecutrix, exposed her on internet and shared indecent images not only with her better half but with others as well---Such was a flagrant intrusion into privacy that had brought a young lady into perennial embarrassment and ridicule within and outside family fold---Reference to prosecutrix's volitional intimacy with accused as contributory factor tantamounted to add insult to injury---High Court declined to receive plea of petitioner with favour in exercise of discretionary jurisdiction---Bail application was dismissed in circumstances.

Amjad Farooq Bismal for Petitioner.

Muhammad Zakariya Sheikh, Deputy Attorney-General for Pakistan assisted by Syed Tasaddaq Mustafa Naqvi.

2018 P Cr. L J 426

[Lahore]

Before Ch. Abdul Aziz, J

JAVED IQBAL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, HAFIZABAD and others---Respondents

W.P. No. 18236 of 2015, decided on 7th April, 2017.

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

----Ss. 249-A, 265-K & 561-A---Quashing of proceedings---Inherent powers of High Court---Scope---Powers which are conferred on the High Court by virtue of S. 561-A, Cr.P.C. are wide in nature and can be exercised at any time if circumstances of a case so demand---Where an accused person seeks quashing of proceedings pending before a criminal court, the powers of High Court under S. 561-A, Cr.P.C. are akin to the provisions of S. 249-A, Cr.P.C.---Such power under S. 561-A, Cr.P.C. cannot be exercised unless jurisdiction of Trial Court is invoked either under S. 249-A, Cr.P.C. or 265-K, Cr.P.C.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

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

----Ss. 200, 249-A & 561-A---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Quashing of proceedings---Petitioner was summoned by Trial Court in a private complaint filed by respondent to face trial on the allegations of cheating and forgery--- Validity--- Petitioner was implicated on the basis of generalized allegation without attribution of any role performed by him in the commission of offence---Complainant in order to secure undue advantage in civil suit, instituted criminal proceedings as a tool---Transaction in question from its very genesis was civil in nature and through sheer misuse and abuse of process of a criminal Court, the complainant had turned the same into criminal litigation---Complainant was not entitled to institute private complainant after extorting an amount of Rs.450,000/- from petitioner as admitted by him before Lower Appellate Court---Proceedings against petitioner, pending before Trial Court were sheer abuse of process of criminal court--- High Court set aside the orders passed by two courts below as there was no probability of conviction of petitioner in any offence---Constitutional petition was allowed in circumstances.

The State v. Asif Ali Zardari and another 1994 SCMR 798 ref.

Mian Mehmood Ahmed for Petitioner.

Ms. Shazia Ashraf Khan, AAG along with Gulzar Hussain, A.S.-I.

2018 P Cr. L J 453

[Lahore]

Before Abdul Sami Khan, J

ZAWAR HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 3781-B of 2017, decided on 20th March, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage, rape---Bail, grant of---Further inquiry---FIR was registered with an unexplained delay of two days---Complainant had leveled allegation of abducting his daughter against accused and his co-accused in the FIR---Nikah Nama (Marriage Certificate) showed that a valid Nikah (wedlock) existed between the alleged victim and the accused---Attested copy of private complaint filed by the alleged victim against complainant and other relatives along with her cursory statement recorded by Magistrate was also available on record wherein she had categorically stated that she had contracted marriage with the accused with her free will and consent, against the wishes of her parents---District Public Prosecutor laid emphasis on the statements under Ss. 161 & 164, Cr.P.C. of the alleged abductee wherein she had leveled allegation of zina-bil-jabr (rape) against the accused and co-accused---High Court observed that such type of disputes had to be decided by Family Court which could be the best forum---Facts of the case created reasonable doubt in the prosecution story, benefit of which was to be extended to accused even at bail stage---Accused was previous non-convict and behind the bars for four months without any fruitful progress towards the conclusion of trial; he was no more required for further investigation---No useful purpose would be served by keeping him behind the bars---Case of accused had become one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.

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

Farooq Zaib Khan for Petitioner.

Muhammad Naseem Akhtar, D.P.P. and Afzal, ASI with record for the State.

2018 P Cr. L J 469

[Lahore]

Before Ch. Abdul Aziz, J

ANWAR MASOOD KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 25190-B of 2017, decided on 14th June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonouring of cheque issued by accused---Bail, grant of---Principles---Accused was arrested for issuing 18 cheques in lieu of a sum of Rs.3,21,90,500/- which were dishonoured on presentation to Bank---Validity---Concession of bail was a procedural relief having nothing to do with the ultimate fate of trial---If a person, otherwise was found entitled to concession of bail, his liberty could not be curtailed on the ground of charge being of heavy amount---Legislature had made offence under S. 489-F, P.P.C. punishable with an imprisonment of three years and that too without any distinction of value of cheque---Rule, in such like cases, was bail and not jail--- Deviation from such rule could only be made in exceptional circumstances; if there was an apprehension of abscondence; if there was an apprehension of repetition of offence; and if there was an apprehension of tampering with prosecution evidence---Bail was allowed in circumstances.

Habib Bank Limited v. Jamilur Rehman 1994 MLD 271; Shafqat Hussain Hashmi v. The State 2012 MLD 1551 and Hakim Ali Zardari v. The State PLD 1998 SC 1 ref.

Saad Ullah for Petitioner.

2018 P Cr. L J 477

[Lahore]

Before Ali Baqar Najafi and Tariq Saleem Sheikh, JJ

MUHAMMAD FAKHAR JAVED KHOKHAR and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

W.Ps. Nos. 6578 and 31843 of 2017, decided on 22nd January, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix)(x), (b), 18 & 22(a)---Criminal Procedure Code (V of 1898), S. 497(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Further enquiry---Standing Operating Procedures (SOP) of NAB---Authorization by Chairman NAB, absence of---Arrest of accused already in custody---Cheating and criminal breach of trust---Petitioners were accused facing trial under National Accountability Ordinance, 1999, on the allegation of cheating members of public at large and amount involved was Rs. 26,611,355---Plea raised by petitioners was that there was no authorization of their investigation by Chairman NAB and they were already in custody when authorities arrested them---Validity---Various FIRs under Ss. 489-F, 406, 457, 380, 379, 356, P.P.C. were registered against petitioners and their Challans were pending before ordinary criminal courts---Liability of petitioners was less than Rs.100 million and as per clause 4(d) of Standard Operating Procedures (SOPs) under the head of "Operational Methodology" Volume-I, 2015, priority had been given to cases of public at large where number of defrauded person was more than 50 persons and amount involved was not less than Rs.100 million---Approval of Chairman NAB was required under clause 4(i) of Operational Methodology, Volume-I, in case falling within the purview of NAB, if amount was less than Rs.100 million---Prosecution witnesses admitted that they had contractual liability for which they were issued cheques for repayment as guarantee and the same were dishonoured---Such contractual liability could be enforced under ordinary laws applicable to the situation---Prosecution failed to show accounts in which amount was stated to have been transferred and thereafter in some other accounts---Prosecution evidence was comprising of documents which could not be tampered and reasonable time would be required by Trial Court to conclude the trial---Case of petitioners fell within the ambit of further inquiry into their guilt---Bail was allowed in circumstances.

Qazi Misbah-ul-Hassan for Petitioner (in W.P. No. 6578 of 2017).

Ch. Hamd-ur-Rehman Waseem Zafar for Petitioner (in W.P. No. 31843 of 2017).

2018 P Cr. L J 487

[Lahore]

Before Abdul Sami Khan, J

NASIR and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 63099-B of 2017, decided on 4th October, 2017.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 147 & 149---Hurt, rioting, unlawful assembly---Bail, refusal of---Accused persons (two in number) were named in FIR with the allegations of causing iron rod blow on the left little finger of complainant and head of injured respectively---Injuries attributed to accused persons fell under Ss. 337-F(v) & 337-A(ii), P.P.C.---Statements of prosecution witnesses particularly the statements of injured persons under S. 161, Cr.P.C. were available on record and same were duly supported by the Medico-legal Certificate---Accused persons were found involved in the case by the investigating officer and recovery of weapon of offence was yet to be effected from them---Accused persons failed to point out any mala fide of the complainant party or local police---Bail was refused accordingly.

Mukhtar Ahmad v. The State and others 2016 SCMR 2064 and Sarwar Sultan and others v. The State and another PLD 1994 SC 133 rel.

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

----S. 498---Pre-arrest bail---Scope---Concession of pre-arrest bail could not be allowed to an accused unless the court felt satisfied about accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or local police.

Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 147 & 149---Hurt, rioting, unlawful assembly---Bail, confirmation of---Two accused persons were named in the FIR and a joint role of giving iron rod blows on the persons of complainant and injured was assigned to them---Offences alleged to said accused persons were bailable---Question of sharing common intention and vicarious liability would be determined by Trial Court after recording evidence---Accused persons were previous non-convicts and never involved in any other case---Accused persons had joined investigation of the case---No useful purpose would be served by sending them behind the bars---False implication of accused persons by the complainant could not be ruled out and they had made out a case for grant of bail---Ad-interim pre-arrest bail was confirmed accordingly.

Azeem Sarwar Baryar for Petitioners with Petitioner No.1 in person.

Irfan Zia, Deputy Prosecutor-General along with Muhammad Nazir, ASI with record for the State.

2018 P Cr. L J 502

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD ZUBAIR RANA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 71198-B of 2017, decided on 24th October, 2017.

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

----S. 498---Penal Code (XLV of 1860), Ss. 496-A, 376, 420, 468 & 471---Enticing or taking away or detaining with criminal intent a woman, rape, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Ad interim pre-arrest bail, confirmation of---Accused was not named in the FIR and was involved through statement under S. 164, Cr.P.C. by the alleged abductee---Copy of Nikahnama (marriage certificate) of alleged abductee with co-accused (brother of accused) was available on record and said co-accused was admittedly a Proclaimed Offender in the case---Alleged abductee in a prior statement under S. 164, Cr.P.C. had stated that she with her free will and consent contracted marriage with co-accused and her father registered a false case against her husband and family members---Alleged abductee had obtained ex parte decree for dissolution of marriage from the Family Court---Complainant had also involved mother (granted pre-arrest bail) and sister (found innocent by Police) of accused in the case---Vicarious liability in the commission of alleged offence would be determined by trial court after recording evidence of parties---Accused was previous non-convict and never involved in any other case---Investigation to the extent of accused was complete and nothing was recovered from him---Possibility of false involvement of accused in the case due to mala fide and ulterior motive of complainant after joining hands with Police, could not be ruled out---Ad interim pre-arrest bail already granted to accused was confirmed accordingly.

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

----S. 497---Bail---Vicarious liability---Scope---Vicarious liability or sharing common intention in the commission of offence would be determined by Trial Court after recording evidence.

Javed Bashir Khan for Petitioner.

Muhammad Irfan Zia, Deputy Prosecutor-General and Shabbir, A.S.-I. with record for the State.

2018 P Cr. L J 515

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 498-B of 2017, decided on 11th April, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Allegation against the accused-petitioner was that he along with co-accused committed murder of the uncle of complainant, a spiritual leader and his follower by firing---Record showed that petitioner's application for bail before arrest was dismissed by High Court with a few crucial observations on the merits of the case, which were still in field---Said observations of the High Court could not be over-looked even at the stage of dealing with post arrest bail application of the accused-petitioner by High Court---Circumstances of the case that existed before the arrest of accused-petitioner and those after his arrest, were closely stitched inter-se and they permeated one another inseparably---Investigation of the case was almost complete when accused-petitioner was apprehended by the police---Accused-petitioner had been recorded as guilty by the Investigating Officer---Facts of the case gradually unfurled and consistently incriminated the accused-petitioner in terms, that he masterminded the crime, provided arms and ammunition to the appointed murderers, plotted a plot and schemingly removed the deceased spiritual leader for winning the local bodies election---Record showed that accused-petitioner was involved in a number of cases of mixed nature, many of them being heinous in nature---Self-implicating statement of co-accused available on record, could be read and used as incriminating circumstances against him---Accused-petitioner had been found involved in the occurrence during the course of investigation and placed in column No. 3 of the challan---Offence, pitted against accused entailed capital punishment, thus it was not a fit case for grant of post-arrest bail, which was refused.

Ghulam Ahmad Chishti's case 2013 SCMR 385 and Mamara's case PLD 2009 SC 385 rel.

Muhammad Akram Qureshi for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor-General Punjab with Liaqat, S.-I. for the State.

2018 P Cr. L J 537

[Lahore]

Before Ch. Abdul Aziz, J

MUHAMMAD ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 875 of 2015, heard on 27th September, 2017.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Delay of about 4/5 hours in lodging FIR---Effect---Occurrence took place during night of at about 2.00/3.00 a.m. and matter was reported to the police at about 7.00 a.m.---Police Station was situated at the distance of 1-1/2 kilometer from the place of occurrence---No explanation was provided for the delay in lodging the FIR---Circumstances suggested that matter was reported to the Police Station with delay, which created doubts regarding the correctness of the story narrated in the crime report.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account had not supported medical evidence---Prosecution case was that the accused inflicted hatchet blows on the head of his wife/sister of the complainant, due to which, she fell down, accused thereafter, strangulated the victim with her Dopatta, who succumbed to the injuries at the spot---Ocular account of the occurrence was brought on record through the statements of witnesses including complainant, who claimed to have witnessed the occurrence from a distance of 2/3 acres and that too at the odd hours of the night, yet they gave all the details and even the locale of the injuries---Record showed that occurrence took place in the dark hours of the night, when there was no source of light---Testimony of said witnesses, in circumstances, did not appeal to prudent mind---Despite the occurrence had been committed in the populated vicinity, but neither witnesses raised any hue and cry nor made any effort to save the deceased from the clutches of accused---Witnesses opted not even to beseech the accused to save the life of the deceased---Rural Health Center was available at a distance of 8-10 acres from the place of occurrence, but none of the witnesses made any effort to provide any medical aid to the deceased---Police arrived at the crime scene at about 8.30 a.m. and till then the dead body of the deceased was lying at the same place---Such state of affairs suggested that the conduct of the witnesses was contrary to the natural human behaviour---Witnesses had stated that they were residents of the place situated at about one kilometer from the place of occurrence; purpose of visit the house of accused and the deceased was to render mediation between the couple in order to settle their dispute---Record transpired that matter was patched up between the accused and the deceased and in such a situation, staying night of the witnesses in their house was apparently uncalled for---Such aspect of the matter casted doubt regarding the presence of witnesses at the crime scene---Witnesses of ocular account stated that deceased was also strangulated by the accused through her Dopatta, while encircling it around her neck---In the case of strangulation, a ligature mark was required to be present all around the neck, whereas in case of throttling, the marks of fingers were to be found on front of the neck only---Medical Officer had observed reddish bruises on the front of the neck of the deceased only, thus the case appeared to be that of throttling and not of strangulation---Testimony of the witnesses showed that the dispute, if any, was settled there and then---Such aspect reflected that since at the relevant time, no dispute existed, hence, there was no reason for the accused to have resort to such untoward aggression---Inordinate delay in the registration of FIR; unnatural conduct of the prosecution witnesses; their presence at the crime scene being a big question mark and conflict of ocular account with the medical evidence had created doubt regarding the veracity of prosecution version, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Weapon of offence (hatchet) was recovered on the disclosure and pointation of the accused, from his house---Statements of eye-witnesses showed that after committing the murder of the deceased, the accused fled away from the spot along with hatchet---Recovery of the hatchet from the house of accused, in circumstances, did not appeal to logic as after committing the brutal murder of his wife, accused would pay a return visit to his house solely for placing the hatchet there---None from the vicinity was asked to join the recovery proceedings so as to provide credibility---Recovery being not confidence inspiring could not be relied.

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

----S. 302--- Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Specific plea taken by accused---Scope---Accused had taken specific defence under S. 342, Cr.P.C. about the death of the deceased---Accused stated that deceased was murdered by the complainant as the deceased had demanded her share of inheritance from the legacy of her father---Complainant refused to give share to the deceased from the inherited property and a quarrel took place between them in the house of the complainant during which she was murdered and her dead body was thrown at the place of occurrence---Son of deceased and accused appeared in defence, who was about ten years old---Deposition of minor witness showed that he narrated his version competently and with maturity, and it appeared that he successfully stood the test of cross-examination by giving rational answers---Accused remained behind the bars throughout the trial, and had no opportunity to meet his minor son/witness so as to tutor him to make a false statement---Defence of the accused got support from the statement of the Investigating Officer of the case, who stated that during the spot inspection, accused was present at the spot---If accused was the killer of his wife, why he opted not to flee away from the vicinity and not arrested from the spot, when the application for the registration of FIR had been moved by the complainant---Prosecution did not challenge the statement of Investigating Officer---Circumstances established that accused through his defence version remained successful in creating dents in the prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Qadeer Hussain v. The State 1995 PCr.LJ 803 rel.

(e) Qanun e Shahadat (10 of 1984)

Art. 3 Child witness Competence Testimony of child witness was related to his capacity and competency to understand the questions and then to address them rationally---Tender age solely was no ground to discredit the testimony of witness if otherwise it was proved that he was mature enough to understand the consequences of his statement.

Muhammad Sharif Zahid for Appellant.

Nemo for the Complainant.

Haroon ur Rasheed, DDPP for the State.

2018 P Cr. L J 558

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

RAB NAWAZ---Petitioner

Versus

MUBRI KHAN and 4 others---Respondents

Criminal Revision No. 82 of 2017, heard on 19th April, 2017.

Penal Code (XLV of 1860)---

----Ss. 380, 448 & 411---Criminal Procedure Code (V of 1898), S. 250---Theft, house trespass and recovery of stolen property---Compensation, imposition of---Trial Court acquitted accused persons of the charge and directed complainant to pay compensation to them---Appeal against compensation was dismissed by Lower Appellate Court on the ground that appeal against acquittal was pending before High Court---Validity---Order of acquittal and order for payment of compensation by complainant were two separate orders although out of the same proceedings but were appealable through separate appeals before different forums---Proceedings of one appeal should not affect the other appeal---If against an order/judgment two remedies were provided under law, then the person concerned to avail the remedies, could approach proper forums which were to decide matters, independently, without being influenced or prejudiced by proceedings pending before other forum---Lower Appellate Court had wrongly dismissed appeal against compensation on the ground that appeal against acquittal was pending before High Court---Said court at the most could have adjourned the appeal sine die---High Court set aside the order passed by Lower Appellate Court and remanded the appeal for decision afresh---Revision was allowed in circumstances.

Raja Muhammad Faisal Ghani Janjua for Petitioner.

Naveed Ahmad Warraich, D.D.P.P. with Faisal, A.S.-I. for the State.

Respondents Nos. 1 and 3 in person.

2018 P Cr. L J 590

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Ahmad Raza Gillani, JJ

RASHID HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 3400-B of 2017, decided on 14th June, 2017.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 156 & 4(p)---Police Rules, 1934, Chap. XXI---Possession and trafficking of narcotics---Authority to investigate---Sub-Inspector (C.I.A. Staff) along with the other Police Officials had conducted raid and allegedly recovered three packets containing charas each weighing 1000 grams---Under subsection (1) of S. 156, Cr.P.C., the power to investigate a cognizable offence had been conferred on any Officer Incharge of Police Station having jurisdiction over the local area within the limits of such Police Station---Crime Investigation Agency (C.I.A.) personnel, had no power to investigate a cognizable offence---Conduct of Sub-Inspector of C.I.A. staff was illegal as he had no power to investigate the said case---"Central Intelligence Agency (C.I.A.)", was one of the preventive and detector organizations created under Chapt. XXI of the Police Rules, 1934 and was established in order to assist the Superintendent of Police and his supervising staff in co-ordinating prevention and detective work of the District Police---No justification existed for S.I./C.I.A. to pre-empt the functions of the area Police---Criminal Investigation Agency (C.I.A.) personnel were not empowered to investigate the matter.

Iftikhar Ahmad alias Dani v. The State PLD 1995 Lah. 606 and The State v. Basher and others PLD 1997 SC 408 ref.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Despite lapse of more than two months report of Government Analyst was awaited; without which, nature of recovered substance could not be exactly determined---Recovery and search proceedings were also conducted by C.I.A. Staff in violation of S.156, Cr.P.C.---Such fact alone was not sufficient to shatter the prosecution case, but all such discrepancies were sufficient to bring the case of accused within the ambit of further inquiry---Mere levelling of allegations of heinous offence, was not sufficient to keep accused behind the gallows---Once accused had succeeded to establish that his case called for further inquiry and probe, then rigours contained in S.51 of the Control of Narcotic Substances Act, 1997 would not be attracted and accused could not be kept behind the bars---Accused was first offender having no criminal history; he was arrested on 12-4-2017 and since then was behind the bars awaiting trial, conclusion of which was not in sight---Illegality committed by the complainant, made the case a fit one of further inquiry---Accused was admitted to post arrest bail, in circumstances.

Syed Badar Raza Gillani for Petitioner.

2018 P Cr. L J 598

[Lahore]

Before Abdul Sami Khan, J

TAJAMMAL HUSSAIN ANJUM alias PHALO---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3294-B of 2017, decided on 16th March, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 392, 201, 411, 364, 109 & 34---Qatl-i-amd, robbery, causing disappearance of evidence, dishonestly receiving stolen property, kidnapping or abducting in order to murder, abetment, common intention---Bail, grant of---Further inquiry---First Information Report was registered with a delay of about five days---Accused though was named in FIR yet his full name was mentioned in supplementary statement after more than one month of the occurrence---Even the statements of prosecution witnesses under S. 161, Cr.P.C., regarding extra judicial confession of accused and his co-accused had been recorded after about one month of the alleged incident---Extra-judicial confession was a weak type of evidence and had no value in the eyes of law---Mere involvement in a heinous offence was no ground for refusing bail to an accused who otherwise became entitled for the concession of bail---Accused remained on physical remand and nothing was recovered from him---Co-accused had been declared innocent by the Investigating Officer---Accused was previous non-convict and never involved in any case and was behind the bars since four months---Investigation qua accused was complete and his person was no more required for further investigation--- Continuous incarceration of accused in jail would not serve any beneficial purpose--- Bail was granted accordingly.

Muhammad Waseem v. The State and others 2012 SCMR 387 rel.

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

----Art. 37---Extra-judicial confession---Scope---Extra judicial confession was not admissible in evidence and had no value in the eyes of law---Extra-judicial confession was a weak type of evidence.

Muhammad Waseem v. The State and others 2012 SCMR 387 rel.

Malik Ghulam Abbas Nissoana for Petitioner.

Muhammad Irfan Zia, Deputy Prosecutor-General and Muhammad Ali, S.-I. with record for the State.

2018 P Cr. L J 607

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD BOOTA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Revision No. 785 of 2014, decided on 12th December, 2017.

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

----Ss. 204, 203 & 154---Penal Code (XLV of 1860), S. 302---Qanun-e-Shahadat (10 of 1984), Arts. 117, 118, 119 & 121---Private complaint---Non-issuance of process---Petitioner filed private complaint and his grievance was that Trial Court declined to issue process against accused---Validity---Process within contemplation of S. 204, Cr.P.C. could be issued upon existence of 'sufficient grounds' to be contemplated on basis of cursory evidence---Formation of opinion by court did not require full dressed rehearsal nor anticipated failure of case of complainant would stand in impediment---Phrases 'sufficient grounds' and 'in the opinion of court' were expressions of higher import than mere accusations in contradistinction of information within meaning of S. 154, Cr.P.C.---Issuance of process required availability of proof in terms of Arts. 117, 118, 119 & 121 of Qanun-e-Shahadat, 1984---'Formulation of opinion' was not an exercise to be carried out subjectively and must be based upon some verifiable material capable of being transformed into evidence in order to sustain charge---Issuance of process warranted more objective and thoughtful consideration---High Court declined to interfere in order passed by Trial Court as there was no material illegality or flaw---Revision was dismissed in circumstances.

(b) Criminal trial---

----Cross version and defense version---Distinction---Cross version is distinguishable from defense version and while there can be no hard and fast rule to be applied with empirical exactitude in every case---Defense plea alone in absence of tangible material or forensic support, having regard to nature of charge, cannot be received as cross version so as to bring accused and accuser side by side in dock.

2018 P Cr. L J 613

[Lahore]

Before Mujahid Mustaqeem Ahmed, J

ZAHID PERVAIZ---Petitioner

Versus

KHURRAM ISLAM and 2 others---Respondents

Criminal Revision No. 54266 of 2017, decided on 3rd August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 9---Habeas corpus, petition for---Detenue, recovery of---Protection of life and liberty---Scope---Petition, under S. 491, Cr.P.C. was filed for the recovery of daughter of petitioner---On the said application, detenue was recovered but was sent to Darul Aman with the observation that she was 16 years old and could not be considered sui juris---Alleged detenue was produced who had stated that she was 19 years of age and being sui juris was not willing to live in Darul Aman and she be set at liberty---Reasons which prevailed with the trial court to send the detenue to Darul Aman were that the petitioner had married with the detenue as well as her aunt at the same time, which was not permissible---Held, court while deciding application under S. 491, Cr.P.C. was not required to go into the question of status of relationship of the parties by holding full-fledged trial of the counter claims and it should concern with free will of the detenue---Detenue being sui juris could not be detained in Darul Aman against her wishes---Order passed by the Trial Court had resulted in curtailment of right of liberty of wife of the petitioner---Protection of life and liberty of citizens was placed on higher pedestal, which was to be respected by all and sundry---Circumstances established that impugned orders were without jurisdiction---Constitutional petition of husband of detenue was allowed by setting aside the impugned orders and detenue be set at liberty.

Ali Muhammad v. The State and others 2013 SCMR 1484; Mir Muhammad v. The State and 4 others 1995 PCr.LJ 2085; Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR 577 and Allah Dad v. Mukhtar and another 1992 SCMR 1273 rel.

Muhammad Aslam Sultani for Petitioner.

Nuzhat Bashir, Deputy Prosecutor-General with Khizer Hayat, Sub-Inspector with Ms. Iram Mushtaq Warden and Khalil Ahmed, Assistant of Darul Aman Faisalabad with Bismah Khurram, Detenue.

2018 P Cr. L J 636

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

NASEER ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 713 and Murder Reference No. 138 of 2015, heard on 9th January, 2018.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Accused was charged for the murder of step brother of the complainant---Ocular account was furnished by the complainant and paternal cousin of the deceased, claiming themselves to be the eye-witnesses of the occurrence---Complainant had stated that on 22.5.2012 at about 12.30 (mid-night) deceased, his cousin and one other person were present at a Dera for dinner---Accused, while armed with .30-bore pistol came there, raised lalkara that three days ago, he was forbidden for aerial firing and made straight fire shots upon deceased, which hit him on different parts of his body---Upon listening the fire shots, complainant reached the spot as his house was situated at a distance of 1-1/2 killa from the place of occurrence---Complainant stated that he had come from other place two days prior to the present occurrence---Said witness deposed that after the murder of the deceased, his widow had filed a civil suit in respect of agriculture property against him and he had also filed a civil suit against her---Said civil suits were filed in respect of agriculture land owned by deceased, who was issueless---Said witness stated in his cross-examination that Dera where occurrence took place was not owned by him, but it was common place being used by all the villagers---Said fact was not pointed out by the complainant before the Investigating Officer---Eye-witness stated that on 22.5.2012 at about 12.30 midnight, he along with deceased and two other persons were sitting in the Dera for dinner and had seen the occurrence---Said witness stated in his cross-examination that pots of the dinner were present there, but police did not take into possession said pots---Inquest report did not show in the relevant columns that pots of the dinner were present at the place of occurrence near the dead body as stated by the eye-witness---Both the eye-witnesses had failed to establish their presence at the time and place of occurrence with their stated reasons, as such, they were chance witnesses---First Information Report showed that occurrence took place between the night of 21/22 May of 2012 at 12.30 a.m. in the dark hours of the night---Witnesses statedly identified the accused in the light of the electric bulb, which was not taken into possession during the investigation as admitted by the eye-witness---Identification of the accused, in circumstances, was not free from doubt---Circumstances established that prosecution had failed to prove its 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.

Muhammad Rafique v. The State 2014 SCMR 1698 and Sardar Bibi and others v. Munir Ahmad and others 2017 SCMR 344 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Motive not proved---Effect---Motive of the occurrence as stated by the complainant was that three days prior to the present occurrence, accused made aerial firing in front of house of the complainant, resulting into hot talks---Complainant stated that he was not present at the time of occurrence of motive---Record showed that no criminal case was got registered against the accused in that respect---Eye-witness deposed during his cross-examination that neither criminal case was registered nor any Punchayat was held regarding occurrence of motive---Both the said witnesses had failed to produce any crime empty to the Investigating Officer recovered from the place of occurrence of motive---Prosecution had failed to prove the motive in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Recovery of weapon of offence---Reliance---Scope---.30-bore pistol was recovered on disclosure of accused---Report of Forensic Science Agency showed that crime empties were received in the office on 30.5.2012 after the arrest of accused---Possibility, in circumstances, could not be ruled out that crime empties had been manufactured before their dispatch to Forensic Science Agency, to obtain positive report---Positive report of Forensic Science Agency in such circumstances, was not believable.

(d) Criminal trial---

----Benefit of doubt---Principle---If there was a circumstance, which created reasonable doubt in the prudent mind about the guilt of the accused, he would be entitled to its benefit not as a matter of grace or concession, but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Malik Rab Nawaz for Appellant.

Tahir Mehmood Parhar for the Complainant.

Munir Ahmad Sayyal, D.P.-G. for the State.

2018 P Cr. L J 656

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Syed NAYAB HUSSAIN SHERAZI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SABZAZAR, LAHORE and 4 others---Respondents

Writ Petition No. 10296 of 2017, decided on 7th April, 2017.

(a) Criminal Procedure Code (V of 1898)

S. 491 Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 361 & 363---Kidnapping from lawful guardianship, kidnapping---Constitutional petition---Prosecution case was that the petitioner, his brother and co-accused forcibly snatched the minors from the custody of their mother/complainant at gun point and took them away---Petitioner, an Advocate by profession, had alleged that he along with another person had malafidely been implicated in the case by the police being in league with the complainant---Complainant had taken self-contradictory stances in her habeas petition and in the FIR---Father of the minors (who was brother of the petitioner) was natural guardian of the minors, therefore, the ingredients of offence as envisaged under S. 363, P.P.C. were not attracted in the case as per exceptions provided under S. 361, P.P.C.---Minors had already been recovered by the police from the custody of brother of petitioner but their recovery had not been shown by the Investigating Officer in the police papers---Contention was that no probability of conviction of the petitioner and his co-accused existed in the present case, therefore, the FIR be quashed---Validity---Record showed that complainant filed habeas corpus petitions but the petitioner and his co-accused failed to produce minors in the lower court---Habeas corpus petition filed before the lower court was withdrawn on the ground that the place of confinement of the minors was not in the knowledge of complainant---Repeated directions for recovery of the minors were issued by the Court in habeas corpus petition to the SHO, SDPO, CCPO and despite the constitution of a special team by the CCPO for the recovery of minors, the minors could not be recovered by the police---First Information Report was registered by the police---Circumstances suggested that the petitioner and his co-accused concealed the minors at some secret place, after their abduction and even the State with all the resources at its command was unable to recover the minors---Circumstances established that minors had been removed from the custody of the complainant, and they were illegally kept in concealment by the petitioner and his co-accused in order to avoid the legal proceedings initiated by mother of the minors for their custody---Admittedly, brother of the petitioner was father of the minors but that fact alone did not mean that he had a license to forcibly snatch the minors from the custody of their mother at gun point and conceal them at some secret place in order to frustrate the process of law and the court---Father could take the benefit of the exception of S. 361, P.P.C., if he established that he in good faith believed himself to be entitled to the custody of his minor children his act must not be for any unlawful or immoral purpose---Record transpired that petitioner and his brother (father) deliberately avoided to produce the minors before the Court---Petitioner, and his co-accused in circumstances, could not be believed in good faith to be entitled to the custody of minors or that their acts were for any lawful or moral purpose---Petitioner and co-accused, therefore, could not claim any exception on the ground that brother of petitioner was real father of minors---Admittedly, the petitioner was an advocate but said fact did not mean that he was above the law or he could claim any exception in respect of any offence on the basis of his being an advocate---Petitioner had been granted the license of advocate to practice the law and not for taking the law into his own hands and to commit crime---Record transpired that there was no contradiction between the story narrated by the complainant in her habeas corpus petition and the story narrated by her in the FIR---Allegedly, minors had been recovered from the possession of the brother of the petitioner, however, their recovery had not been shown in the relevant papers by the police---Said ground related to the disputed question of facts which could not be decided in the Constitutional jurisdiction---If the petitioner was not satisfied with the investigation of the case, he could file application for transfer of investigation before the concerned authorities---No substance, having been found in the Constitutional petition, same was dismissed in limine.

Amjad Shah v. SHO of Police Station Sukheki and another 2008 YLR 1507; Muhammad Ashraf v. SHO and others 2001 PCr.LJ 31; Abdul Ghafoor v. Mst. Zubaida Bibi 1996 PCr.LJ 1228 and Muhammad Mukhtar v. SHO and 3 others 2008 YLR 2665 ref.

Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Shabbir Hussain alias Papu v. SHO of Police Station Bumbanwala District Sialkot and 3 others 2006 PCr.LJ 1260 and Abdul Ghaffar v. Ishtiaq Ahmad Khan and another 1997 PCr.LJ 1150 rel.

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

----Ss. 154 & 173---Penal Code (XLV of 1860), S. 363---Constitution of Pakistan, Art. 199---Constitutional petition---Kidnapping---Partial quashment of FIR---Scope---Partial quashment of the FIR was not permissible under the law.

Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 rel.

2018 P Cr. L J 698

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

IJAZ AHMED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 663 of 2012, 508 of 2015 and Murder Reference No. 167 of 2012, heard on 29th November, 2017.

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

----Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about one hour and forty five minutes in lodging of FIR---Effect---Occurrence took place on 15.10.2008 at about 6.30 p.m.---Police Station was situated at a distance of 9-kilometers from the crime scene and was connected through a metalled road---Matter was brought to the notice of police through the oral statement of complainant recorded in the hospital at about 8.15 p.m.---Eyewitness had stated that police was informed about the incident within 10/15 minutes after the occurrence and then reached the hospital---Facts remained that statement of eyewitness was not recorded at the time of his first visit to the Police Station---Investigating Officer had denied his interaction with the said eyewitness and stated that he received information of the occurrence from Moharer---Investigating Officer had stated that statement of complainant was recorded in hospital and forwarded the complaint through a constable but said police official was not produced as a witness, during the trial---Non-production of said police official had left a big question mark on the claim of the prosecution regarding prompt reporting of the matter to the police.

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

----Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons duly armed with deadly weapons, emerged on the spot and started firing at his son, which hit on his knee and back---Victim was shifted to hospital and after getting first aid, injured got recorded his dying declaration---Victim succumbed to the injuries---Motive behind the occurrence was stated to be previous litigation---Ocular account of the occurrence had been furnished by the witnesses including complainant---Record revealed that the occurrence took place in front of a Dera---None of the eye-witnesses was resident of crime scene and their houses were situated at a distance of 10-15 acres from the said Dera---First Information Report as well as the examination of eyewitnesses revealed that they tried to justify their presence at the crime scene by deposing that they were sitting there in connection with a personal matter---Detail of personal matter was neither given in the crime report nor in the examination-in-chief of the witnesses---Said witnesses deposed during cross-examination that they were getting prepared sickles from a ironsmith---Neither the owner of the Dera nor ironsmith appeared in the witness box in order to provide some credibility to the claim of both the eye-witnesses regarding their presence at the crime scene---Presence of said witnesses at the crime scene could be an outcome of a sheer coincidence, which rendered them as chance witnesses---If a witness was found to be a chance witness, his testimony was not to be discarded out-rightly if supported and corroborated from other evidence, which was lacking in the present case---Record transpired that the testimony of eye-witnesses, who not only were inimical to the accused persons but were found to be chance witnesses, got no support or corroboration from any other material---Circumstances established that prosecution failed to prove its case against the accused persons beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1141 rel.

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

---Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Interested witnesses--- Scope--- Record showed that eyewitnesses including complainant were closely related to the deceased and were also inimically placed against the accused persons---Eyewitness got registered a criminal case and implicated accused persons along with acquitted accused---All the said accused persons during investigation, were found innocent and were placed in Column No. 2 of report under S. 173, Cr.P.C.---Said aspect of the matter unfolded that the eye-witnesses were not in best of terms with the accused persons and made them as partisan and interested witnesses.

Umar Hayat and 3 others v. The State 1997 SCMR 1076 rel.

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

----Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Record transpired that deceased was fired at by the accused persons, while he was riding a motorcycle---Deceased after receiving the first fire shot, fell on the road and such fall of the deceased was likely to cause him certain additional injuries on his person---Statements of Medical Officers revealed that no such injury was noted by either of them---Medical evidence made obvious that the statements of both the Medical Officers did not fit into the theory advanced by the prosecution.

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

----Ss. 302, 404, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Dying declaration---Scope---Such statement was to be recorded either by a Magistrate or in the presence of a Gazetted Police Officer and in absence thereof, in front of two or more unconcerned reliable witnesses---However, if neither of the said persons were available, only then such a statement could be recorded in the presence of two or more Police Officers---Record revealed that Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the hospital---Deceased, then injured was brought to the hospital at about 7.50 p.m., where he died at 10.45 p.m.---During said period, victim was provided extensive medical treatment---Complainant remained present in the hospital but he uttered not a single word regarding dying declaration of deceased---Eyewitness deposed that deceased died ten minutes after making statement to the police---Investigating Officer deposed that he recorded the statement of deceased after about twenty minutes of his arrival in the hospital---Statements of said witnesses regarding time of recording the statement of deceased were in conflict with each other---Circumstances and facts of the case showed that since the statement of deceased was made just before the death of the deceased, hence, there was every possibility that victim was not in full control of all his faculties giving rise to a possibility of the statement not being lucid, which created doubt regarding the legal worth of dying declaration---Record showed that the thumb impression of the deceased were marked/affixed twice at the same place, which reflected that at the time of making statement, deceased had lost control over his senses---Said feature of the case raised doubt about the veracity and correctness of the dying declaration as well as opinion of the Medical Officer, according to which the deceased was fit to make statement at the relevant time---Inquest report, which was prepared subsequent to the death of deceased found no mention regarding dying declaration of the deceased---Record was silent as to why the statement of the deceased was not recorded in the presence of the Medical Officer as it did not bear his signatures---Dying declaration of the deceased, in circumstances, had no effect on the case of prosecution.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Effect---Previous litigation was portrayed as cause of the occurrence, but neither in the crime report nor in the examination-in-chief of the witnesses, the details of enmity was brought on record---Eye-witness, during cross-examination stated that prior to the occurrence, a criminal case was registered against the accused party on his complaint---Report under S. 173, Cr.P.C. of the said case evinced that deceased was not even a witness of the said occurrence---If the registration of FIR was the cause of annoyance then eyewitness should have been the primary target of the aggression of the accused persons---Despite being present at the crime scene, even thirty minutes before the occurrence, eye-witness/complainant of the previous FIR escaped unhurt---Circumstances established that motive remained unproved.

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

----Ss. 302, 404, 148 & 149---Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime empties and weapon---Scope---Crime empties of .44-bore alleged to have been recovered from the crime scene, matched with rifle recovered from the accused---Said recoveries were inconsequential in nature as the recovered articles were sent to Forensic Science Laboratory on the same date.

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

----Ss. 374 & 376---Reference under S. 374, Cr.P.C.---Principles.

A read through the provisions of sections 374 and 376, Cr.P.C. reveals that while deciding a reference under section 374, Cr.P.C. High Court has abundant powers to confirm the sentence or to pass any other appropriate sentence or to annul the conviction or even to order a new trial on the same or on an amended charge and lastly even to acquit an accused. It further spells out from the above two sections that in order to decide a reference under section 374, Cr.P.C. the personal presence of the convict is not made mandatory by the legislature. A reference under section 374, Cr.P.C., even in the absence of the convict is to be decided, keeping in view the merits of the case.

Syed Zahid Hussain Bokhari, Khalida Perveen and Ali Muhammad Zahid Bokhari for Appellants.

Abid Saqi for the Complainant.

Muhammad Zubair Farooq, Additional Prosecutor-General for the State.

2018 P Cr. L J 739

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

JUNAID ARSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 106904-B of 2017, decided on 5th December, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 500, 120(b) & 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 4, 16, 20, 21 & 24---Defamation, criminal conspiracy, abetment, unauthorized copying or transmission of data, unauthorized use of identity information, offences against dignity of a natural person, offences against modesty of a natural person and minor, cyber stalking---Pre-arrest bail, recalling of---Allegation against the accused was that he with the rank of Senior Police Officer, created a fake facebook profile in complainant's name ( his former wife) and thereby established digital communication with co-accused on his profile and through the cyber medium dispatched/uploaded material that included complainant's graphically explicit images---Accused induced the co-accused to establish liaison with the complainant, surprised embarrassingly as the images went viral---Argument that the accused, still struggling to save the bond, could not conceivably upload graphic images of a lady, though estranged, nonetheless being mother of his four children, to incur a perennial embarrassment, though ingeniously articulated, faded into insignificance in the face of formidable forensic evidence, inexorably pointed upon culpability of accused---Status of accused as a senior Civil Servant was beside the mark as there were no more equals in law and the office by itself did not confer respectability---Arrest in cognizable cases, an essential step towards investigation---Anticipatory bail was an extraordinary remedy, which could not be claimed in every criminal case as a substitute for post arrest bail---Accused had not been able to point out a single circumstance to even obliquely suggest any malice lurking behind the intended arrest---Ad interim pre-arrest bail granted earlier was recalled and bail petition was dismissed in circumstances.

Sakhawat Ali v. Khalid Mehmood and 7 others PLD 1994 Lah. 377; Hidayat Ullah Khan's case PLD 1949 Lah. 121; Malik Nazir Ahmad v. Syed Shamas-ul-Abbas and others PLD 2016 SC 171 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Babar Awan for Petitioner.

Sajjad Hussain Mian, Assistant Attorney-General with Munam Bashir, Inspector and Mian Saqib Hafeez, Technical Expert, FIA.

2018 P Cr. L J 763

[Lahore]

Before Abdul Sami Khan, J

ABDULLAH and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Misc. No. 60067-B of 2017, decided on 24th October, 2017.

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

----S. 498--- Penal Code (XLV of 1860), Ss.302, 324, 337-A(i)(ii), 337-F(i), 337-L(2), 337-H(2), 447, 511, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah-i-Khafifah, Mudihah, Damiyah, hurt, criminal trespass, attempt to commit offence, hurt by rash or negligent act, rioting, common object---Pre-arrest bail, grant of---Unexplained delay of three days in registration of FIR, which prima facie reflected that the FIR had been got registered after due deliberation and consultation---No specific role had been assigned to accused and only a joint allegation of making aerial firing along with co-accused was levelled against accused---One of co-accused was assigned role of inflicting "Sota" blows, which was a bailable offence---None of accused persons had caused any injury to the deceased---Questions of sharing common intention in furtherance of common object with co-accused for committing murder of deceased and vicarious liability of accused persons, would be determined by the Trial Court after recording evidence---Injuries sustained by some of accused persons during the incident were suppressed---Both the parties having received injuries during the incident, question as to who was the aggressor and who had been aggressed upon, would be determined by the Trial Court after recording evidence---Two accused persons who were merely present at the spot, were empty handed---Case to the extent of said accused persons had become a case of two versions; one put forward by the complainant in FIR, and the other came on record during investigation and which version was correct, would be determined by Trial Court after recording evidence---Dispute regarding property and civil litigation was pending between the parties---Possibility of false implication of accused persons by the complainant by spreading the net wide, could not be ruled out---Accused persons who were previous non-convict, had already joined the investigation, which to the extent of said accused persons was complete---No useful purpose would be served by sending said accused persons behind the bars---Pre-arrest bail, already granted to said accused persons, was confirmed, in circumstances.

Mumtaz Hussain v. The State 1996 SCMR 1125; 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---Benefit of doubt---Benefit of doubt, could be extended in favour of accused even at bail stage.

Liaqat Ali Malik for Petitioners.

Irfan Zia, Deputy Prosecutor-General and Shabbir, S.-I. with record for the State.

2018 P Cr. L J 788

[Lahore]

Before Abdul Sami Khan, J

SHABBIRAN BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 55505-B of 2017, decided on 27th October, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376, 302, 338-C & 34---Rape, qatl-i-amd, isqat-i-janin, common intention---Bail, grant of---Further inquiry---Accused along with co-accused allegedly committed isqat-i-janin (miscarriage of child) of sister (deceased) of complainant by administering poisonous substance---According to report of Punjab Forensic Science Agency, no poisonous substance was detected in viscera of deceased---Accused was a woman aged about sixty five years and because of her gender her case fell within the proviso to subsection (1) of S. 497, Cr.P.C.---Benefit of slightest doubt arising out of prosecution case could be extended to accused even at bail stage---Question of sharing common intention with co-accused for committing murder of deceased would be determined by Trial Court after recording evidence---Accused was previous non-convict, she was behind the bars since one and a half year---Investigation of case was complete and accused was no more required for further investigation---Nobody could be kept in jail for indefinite period---Further incarceration of accused would not serve any useful purpose---Mere heinousness of offence was no ground to refuse bail to accused, if otherwise accused became entitled for concession of bail---Case of accused became one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.--- Bail was granted accordingly.

Syed Khalid Hussain Shah v. The State 2014 SCMR 12 and Imbrass and another v. The State and another 2016 SCMR 1558 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of slightest doubt arising out of prosecution case could be extended to accused even at bail stage.

Imbrass and another v. The State and another 2016 SCMR 1558 rel.

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

----S. 497---Bail---Common intention---Scope---Question of sharing common intention with co-accused would be determined by Trial Court after recording evidence.

Arif Ahmad Mirza for Petitioner.

Muhammad Irfan Zia, Deputy Prosecutor-General and Mudassar, S.-I. with record for the State.

2018 P Cr. L J 795

[Lahore]

Before Abdul Sami Khan, J

QASIM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 101245-B of 2017, decided on 20th November, 2017.

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

----S. 497 & 347---Penal Code (XLV of 1860), Ss. 337-A(iii), 337-L(2), 337-F(i), 337-N(2)& 34---Hurt, common intention---Bail, grant of---Further inquiry---Role attributed to accused was that he gave fist blow to the injured which landed on his nose and caused fracture---FIR was registered with a delay of eight days---Injury attributed to accused was declared by doctor as under 337A(iii), P.P.C.---While deciding bail application maximum punishment was not to be considered and the punishment likely to be awarded to the accused would be considered---Offence with which the accused was charged was triable by Magistrate, Section-30, who could award punishment upto seven years only---Whether it was a fit case to be sent to the Court of Session under S. 347, Cr.P.C. would be determined by trial court after recording evidence---When there are two inferences regarding the same thing one in favour of accused would prevail---Accused was previous non-convict and never involved in any other case---Accused was behind the bars since five months without any fruitful progress towards conclusion of trial---Investigation of case was complete and accused was no more required for further investigation---Nobody could be kept in jail for indefinite period as speedy trial was right of every accused person---No useful purpose would be served by keeping accused behind the bars---Case of accused became one of further inquiry covered by subsection (2) of section 497, Cr.P.C.---Bail was granted accordingly.

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

----S. 337-N(2)--- Sentence of imprisonment--- Scope---Sentence of imprisonment could only be awarded if accused was a previous convict, habitual or desperate criminal or had committed the offence in the name or on the pretext of honour.

Muhammad Shahid Tasawar Rao for Petitioner.

2018 P Cr. L J 823

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

NAZIR AHMED---Petitioner

Versus

MUHAMMAD ASIF and 3 others---Respondents

W.P. No. 3752 of 2015, decided on 28th September, 2017.

(a) Constitution of Pakistan---

----Art. 189---Article 189 of the Constitution mandatorily made the decisions of the Supreme Court binding upon all the courts functioning in the country.

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

----Ss. 173 & 439---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Cancellation report---Respondent had lodged FIR under S. 406, P.P.C. against petitioner---Police, after investigating the matter prepared a cancellation report and submitted the same before the Judicial Magistrate---Judicial Magistrate agreed with the cancellation report---Respondent preferred a criminal revision petition against the decision of the Magistrate which was accepted---Validity---Criminal revision petition was not maintainable against the executive order passed by the Judicial Magistrate agreeing with the cancellation report submitted by police---Order passed in criminal revision was not sustainable---Constitutional petition was accepted, in circumstances, by setting aside the impugned order.

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

Bakhat Baidar Ali Shah v. The State and 5 others 2011 YLR 2587 ref.

Ch. Abdul Waheed-I for Petitioner.

Asim Aziz Butt, Assistant Advocate-General for the State.

2018 P Cr. L J 834

[Lahore]

Before Abdul Sami Khan, J

ABDUL RAUF and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 70453-B of 2017, decided on 4th October, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Accused along with co-accused persons allegedly fired at complainant party---Accused, in three consecutive investigations, was not assigned the role of causing injury to deceased, but was caused by co-accused who had been allowed bail by Trial Court on the basis of compromise---Charge under S. 302, P.P.C. was also deleted to the extent of present accused---Opinion of police though was not binding on the court of law, yet same could be taken into consideration while deciding bail application---Case of prosecution to the extent of accused, in view the contents of FIR and outcome of investigation, had become of two versions---Conflict existed between ocular and medical evidence---Accused was previous non-convict and behind the bars for eight months---Investigation of the case was complete and accused persons were no more required for further investigation---Further incarceration of accused would not serve any useful purpose---Case of accused became one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137 and Syed Khalid Hussain Shah v. The State 2014 SCMR 12 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Accused allegedly was present at the spot while armed with Kalashnikov but did not cause any injury to the deceased; no specific allegation of firing at the spot by said accused was levelled by complainant---Benefit of slightest doubt arising out of prosecution case could be given to accused even at bail stage---Question of sharing common intention for murder of deceased with co-accused persons would be decided by Trial Court after recording evidence---Accused was previous non-convict and behind the bars for eight months---Investigation of the case was complete and accused persons were no more required for further investigation---Further incarceration of accused would not serve any useful purpose---Case of accused being one of further inquiry was covered by subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.

Imbrass and another v. The State and another 2016 SCMR 1558 rel.

Ch. Imran Raza Chadhar for Petitioners.

Muhammad Irfan Zia, Deputy Prosecutor-General and Nisar, S.-I. with record for the State.

2018 P Cr. L J 875

[Lahore]

Before Shahid Hameed Dar, J

SIRAJ AHMED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1110 of 2010, decided on 15th March, 2017.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document--- Appreciation of evidence--- Appeal against acquittal---Allegation against accused-respondent was that he had fraudulently sold a smuggled vehicle to the wife of complainant---Trial Court acquitted the accused on the ground that case was that of no evidence---Validity---Record showed that complainant rendered self-contradictory statement by deposing that his wife had purchased the vehicle from the accused-respondent and in the same breath, he added that she purchased the said vehicle from her servant, who was relative of the accused---Complainant deposed that vehicle was registered in the name of wife of accused and the accused-respondent transferred the same to complainant's wife---Attending circumstances suggested that vehicle was purchased by the wife of complainant but said lady did not appear at trial nor she was cited as prosecution witness in the challan---Servant of the complainant who played a role in the sale of the said vehicle, was not produced as a witness by the prosecution---Vehicle remained under the use of complainant for about four years, but he did not know that its engine number or chassis number had been tampered---Complainant admitted that he had not seen the accused tampering with the said vehicle---Prosecution had not produced any one in support of claim that accused-respondent or his brother had promised to compensate him either by refunding the price thereof or providing him with a new vehicle---Circumstances established that offences of cheating, fraud/forgery and knowingly using forged documents as genuine could not be established against the accused-respondent by the prosecution during trial---Appeal against acquittal was dismissed in circumstances.

Ch. Muhammad Zubair Rafique for Appellant.

2018 P Cr. L J 887

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD NASEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 142 of 2017, decided on 20th June, 2017.

(a) Criminal trial---

----Confession---Administration of justice was based upon adversarial trial with accused under a statutory presumption of being innocent---Prosecution alone was to drive home charge beyond reasonable doubt before a guilty verdict was returned by court---Accused, in such process, was protected by procedural safeguards to ensure him a fair deal in order to contest charge without being disadvantageously placed or unduly embarrassed---Procedural safeguards, provided to accused were protection against self-incrimination---Accused could not be burdened with confessional statement in derogation of strict procedure provided under the law.

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

----Arts. 39 & 40---Confessional statement during police custody--- Scope--- Petitioner was amongst accused persons contesting indictment of homicide---Prosecution during trial, produced a witness who referred to confessional statement allegedly made by petitioner during his physical custody with police---Validity---Provisions of Art. 39 of Qanun-e-Shahadat, 1984 placed an unambiguous and unqualified prohibition on admissibility of confessional statement purportedly recorded in police custody, saved in the exception provided under Art. 40 of Qanun-e-Shahadat, 1984---Trial Court should not have allowed such prosecution witness to transgress statutory limits---Status of identification/disclosure memo was not much different---Prosecution's case was that deceased was done to death in residential premises where she lived with petitioner under the same roof---Attributed specifications of the place did not constitute "information" within meaning of Art. 40 of Qanun-e-Shahadat, 1984---High Court directed Trial Court to exclude prosecution witness in question from consideration at time of final decision---Revision was allowed in circumstances.

Faheem Ahmad Ch. for Petitioner.

Nemo for the Complainant.

Ch. Qaisar Mushtaq, ADPP with Arif, ASI for the State.

2018 P Cr. L J 919

[Lahore]

Before Abdul Sami Khan, J

ZIA alias MITHU---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 98845-B of 2017, decided on 12th December, 2017.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused, though was named in FIR but no specific role had been assigned to him except that accused along with co-accused made fire shots, and one fire shot hit on the head of the deceased---Accused was a juvenile at the time of occurrence, and it was not an intentional murder, rather, it was qatl-i-khata, and the Investigating Officer had prepared the challan under S.319, P.P.C., and submitted the same before the Prosecution Department, whereupon S.302, P.P.C., was added---Case had become of two versions i.e. one put forward by the complainant in the FIR, and the other came on record during investigation---Question as to which version was correct, would be determined by the Trial Court after recording evidence---Accused was previous non-convict and was never involved in any other case of like nature---Accused was behind the bars since 21-8-2017, but trial had not progressed---Complainant had also filed private complaint, which was still at initial stage and only cursory evidence was recorded; which had shown that there was no chance of early conclusion of the trial of the case---Investigation of the case to the extent of accused was complete and he was no more required for investigation---Mere heinousness of offence, was no ground to refuse bail---Case of accused, having become one of further inquiry covered by subsection (2) of S.497, Cr.P.C., he was granted bail, in circumstances.

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. 497---Bail---Benefit of doubt---Benefit of doubt could be given to accused at bail stage.

Qazi Zafarullah Khan for Petitioner.

Ms. Nuzhat Bashir, D.P.G. and M. Ilyas, S.-I. with record for the State.

2018 P Cr. L J 928

[Lahore]

Before Abdul Sami Khan, J

NOOR MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 108263-B of 2017, decided on 29th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss.337-A(i)(iii), 337-F(i), 337-L(2) & 34---Causing Shajjah-i-Khafifah, Shajjah-i-Hashimah, Damiyah, hurt, common intention---Pre-arrest bail, grant of---Accused, though was named in FIR, but only the allegation of raising "lalkara" and causing "sota" blow on the right side of forehead of injured was levelled against him---Injury attributed to accused had been declared Shajjah-i-Khafifah, which was a bailable offence---No role whatsoever had been assigned to accused in commission of alleged offence---Injury falling under S.337-A(iii), P.P.C., was specifically attributed to co-accused---Questions of sharing common intention and vicarious liability of accused, would be determined by the Trial Court after recording evidence---Accused who was an old man, was father of co-accused---Possibility could not be ruled out of consideration that the complainant had implicated accused in the case with mala fide intention and ulterior motive by spreading the net wide---Accused was previous non-convict---Person of accused, could not be handed over to the Police only for the purpose of effecting recovery, which otherwise had lost relevancy with the passage of time as said recovery of weapon of offence "sota" was to be effected after lapse of six months, which was of little help to the prosecution---Accused had already joined the investigation, which was complete to his extent---No useful purpose would be served by sending accused behind the bars---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

2014 SCMR 1349 rel.

Amjad Iqbal Khan for Petitioner and Petitioner in person.

2018 P Cr. L J 952

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD BILAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 123420-B of 2017, decided on 19th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2) & 347---Penal Code (XLV of 1860), Ss. 324, 337-F(iii) & 34---Attempt to commit qatl-i-amd, hurt and common intention---Bail, grant of---Further inquiry---Power of Trial Court to award maximum punishment---Scope---Complainant contended that accused fired two shots which landed on thigh of his brother-Record revealed that though the accused was nominated in FIR, but the same was lodged with the delay of 23 days without any explanation by the complainant which showed that FIR had been lodged after due deliberation and consultation---Injuries on the person of injured were declared by the doctor as "jurrah ghayr-jaifah-mutalahimah" under S. 337-F(iii), P.P.C. which carried maximum punishment up to three years as Ta'zir---Said injuries being on thigh, question of attracting S. 324, P.P.C. would be determined by the Trial Court after recording the evidence---Offence with which the accused was charged was triable by Section-30 Magistrate who was competent to pass sentence upto seven years only and whether it would be a fit case to be sent to the Court of Sessions under S. 347, Cr.P.C. or not for enhancement of sentence would be determined by Trial Court after recording evidence---Where there were two inferences, one favouring the accused would be drawn---Case called for further inquiry into guilt of accused as envisaged under S. 497(2) of Cr.P.C.---Accused was admitted to bail, in circumstances.

Rana Sarfraz Ahmad for Petitioner.

Muhammad Irfan Zia, Deputy Prosecutor-General and Gulzar, ASI with record for the State.

2018 P Cr. L J 988

[Lahore]

Before Abdul Sami Khan, J

DILAWAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 152965-B of 2017, decided on 13th February, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 347---Penal Code (XLV of 1860), Ss. 324, 334, 459, 337(i), 337-F(iii), 337-F(v), 337(iv), 109, 148 & 149---Attempt to commit qatl-i-amd, itlaf-i-udw, hurt and vicarious liability---Bail, grant of---Further inquiry---Conflict in ocular account and medical evidence---Effect---Unexplained delay of one day in registration of FIR---Maximum punishment of the offences charged was not to be considered while deciding bail petition---Record, in the present case, showed that the accused had been assigned the role of causing firearm injury on the right leg of injured person and on the said leg, firearm injury had also been attributed to one co-accused---According to Medico Legal Certificate of injured person, there was only one fire-arm injury on right leg of the injured---Such conflict in the medical evidence and ocular account made the case of the accused of further inquiry---Offence with which the accused was charged was triable by Section-30 Magistrate who could award punishment up to seven years only and whether the same be a fit case to be sent to the Court of Session under S. 347, Cr.P.C. or not, would be determined by the Trial Court after recording evidence---Accused was previous non-convict and was no more required for further investigation---Bail was granted, in circumstances.

Ch. Fiaz Hussain Dhariwal for Petitioner.

Ms. Nuzhat Bashir, Deputy Prosecutor-General and Mukhtar Ahmad, ASI with record for the State.

2018 P Cr. L J 1011

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD SIKANDAR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 118699-B of 2017, decided on 6th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(v) & 34---Hurt and common intention---Ad interim bail, confirmation of---Accused was nominated in the FIR with allegation of beating the complainant---FIR was registered with unexplained delay of eighteen days which showed that the same had been registered after due deliberation and consultation---Record revealed that the only injury noticed by the Doctor was on the head of the injured, which fell under S. 337-A(v), P.P.C.---Said injury was specifically attributed to the co-accused whose bail had been already declined---Accused was attributed the role of beating the injured which was not borne out from the Medico Legal Certificate---Common intention and vicarious liability of the accused in commission of alleged occurrence would be determined by the Trial Court after recording evidence---Accused was father of main accused and possibility could not be ruled out that he had been roped in the present case for spreading the net wide---Accused had made out case for grant of pre-arrest bail---Ad interim bail already granted to accused was confirmed in circumstances.

Mazhar Hayat for Petitioners with Petitioner in person.

Irfan Zia, D.P.G. and Faiz, ASI with record for the State.

2018 P Cr. L J 1025

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 156490-B of 2018, decided on 9th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), S. 365-B--- Kidnapping, abducting or inducing woman to compel for marriage---Pre-arrest bail, confirmation of---Accused was nominated in FIR with allegation that he along with co-accused abducted daughter of complainant for immoral purpose---FIR was registered with unexplained delay of one day---Record revealed that alleged abductee had contracted Nikah with the accused before the registration of present case and said abductee also filed private complaint before Magistrate and recorded her statement that he had not been abducted by anybody rather she being sui juris had contracted marriage with the accused with her free will and consent---Alleged abductee, however, joined her parents and got recorded her statement under S.164, Cr.P.C. and changed her version---High Court observed the dilemma of the society that in the first instance girl eloped with her paramour and contracted Nikah with him and later on when she joined her parents, she took somersault and involved her husband and his family members/relatives in such like cases---Accused was previous non-convict and he had already joined investigation---Offence falling under prohibitory clause of S. 497, Cr.P.C. was no ground to refuse bail to accused if otherwise he was entitled to grant of pre-arrest bail---False implication of present accused by the complainant with mala fide intention could not be ruled out---Ad-interim pre-arrest bail already granted to the accused was confirmed in circumstances.

Malik Muhammad Riaz Awan for Petitioner with Petitioner in person.

Muhammad Irfan Zia, Deputy Prosecutor-General and Ashraf, SI with record for the State.

2018 P Cr. L J 1057

[Lahore]

Before Ali Baqar Najafi and Tariq Saleem Sheikh, JJ

AHAD KHAN CHEEMA---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

W.P. No. 169373 of 2018, decided on 27th March, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Arrest---Physical remand---Petitioner who was arrested by NAB authorities assailed his arrest during physical remand---Plea raised by petitioner was that his arrest was in retaliation to a letter sent by him to the Chairman NAB---Validity---Warrants of arrest were issued by not less than Chairman NAB himself and he was facing inquiry of alleged corruption and corrupt practices in respect of a project---Allegation against petitioner related to the period when petitioner was Director General, Lahore Development Authority---Accountability Court had already extended remand of petitioner---High Court declined to consider plea of petitioner at such stage---Necessary legal requirements for grant of remand were complied with---Well reasoned order by Accountability Court was passed in satisfaction of judicial conscience as there were reasonable grounds for believing that accusations or information were well founded justifying custody of accused with NAB authorities---Information furnished before Accountability Court was not false which raised suspicion that accused committed offence under the provisions of National Accountability Ordinance, 1999---Prima facie, reasonable grounds existed to believe petitioner's involvement in alleged offence and thus his custody in connection with the case was neither illegal nor improper---High Court holding the Constitutional petition as not maintainable declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Abdul Qadir v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 others 2002 SCMR 1478 ref.

Hammad Khalid v. Chairman, National Accountability Bureau, Islamabad and others PLD 2003 Lah. 94 rel.

Azam Nazir Tarar for Petitioner.

2018 P Cr. L J 1084

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz, J

ASHIQ ALI and 6 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 217 of 2012, decided on 25th January, 2018.

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

----Ss. 376(2) & 114---Rape, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Case was registered with unexplained delay of about eight days---Prosecution attributed such delay to reconciliation effort of the relatives of accused, but no evidence was led by the prosecution in that behalf---Three witnesses, including the victim, appeared to tell the details of the occurrence, but from their statements it evinced that except the victim none had the opportunity to witness the crime---Even the victim was found making divergent statements in the court---Prosecution witness, who claimed to be eye-witness, made dishonest improvement in his ocular account, his claim of having witnessed the occurrence after noticing the hue and cry of the victim, appeared to be an outcome of exaggeration, rendering it unsafe to place explicit reliance on what he deposed before the court---House of the victim was situated in a Chak, which was inhabited by as many as two thousand persons having numerous residential houses, but none from the vicinity appeared to support the accusations, incorporated in the crime report, either at investigation stage or during the trial---Discrepancies, omissions and conflicts in the case, were giving rise to a doubt which denied a prudent legal mind to lean against version advanced by the prosecution---Lady doctor, noticed no marks of violence on person of the victim, either due to her resistance or on account of the sexual lust of the culprits---Despite specific instructions by lady doctor the clothes of the victim, which she was wearing at the time of incident, were not secured for further examination---Claim of the victim, was strongly negated from the medical evidence brought on record during the trial---Prosecution having failed to prove its case against accused persons, conviction and sentence recorded by the Trial Court against accused were set aside and they were acquitted of the charge, extending them the benefit of doubt.

Ibrar Hussain and others 2007 SCMR 605; Muhammad Naeem Inayat v. The State 2010 SCMR 1054; Dr. S. Siddiq Husain in Chapter-XII, Sexual Offences titled A Text Book of Forensic Medicine and Toxicology; Forensic Science in Criminal Investigation and Trials Fifth Edition by B.R. Sharma and Muhammad Rafique and others v. State and others 2010 SCMR 385 ref.

(b) Administration of justice---

----Court by its very creation, was to administer justice and such object could best be achieved only through decisions in accordance with the available record and in consonance with the settled principles laid down for appreciation of evidence.

(c) Criminal trial---

----Benefit of doubt---Benefit of every reasonable doubt was to be extended to an accused, which could best be provided through a judgment of acquittal.

Saying of Holy Prophet (p.b.u.h.) and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Mian Ahmad Mehmood for Appellants.

Nemo for the Complainant.

Nadeem Haider Rizvi, Deputy District Public Prosecutor for the State.

2018 P Cr. L J 1104

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

ZIAULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 1067-J of 2016, decided on 7th December, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Alleged occurrence had taken place at night---Eye-witnesses alleged that the complainant was having torch and that there was an electric bulb, but neither said torch nor the bulb were produced before the Investigating Officer or the Trial Court---Site plan did not show any bulb at or near the crime scene---Identification of accused at the time of occurrence being highly doubtful, medical evidence would not be of much avail to it---Testimony of witness of extra-judicial confession of accused, did not inspire confidence at all---Alleged confessional statement of accused, violated the law in more than one ways; Area Magistrate recorded the same on oath and in the presence of Police Officials; both prosecution witnesses had confirmed that the Police Officials were in the court room when Magistrate took down statement of accused---Said confession, was inadmissible and could not be relied upon---Investigating Officer who took into possession two empty cartridges and two live cartridges from the scene, did not associate any independent witness with the said recovery proceedings as required under S.103, Cr.P.C.---Prosecution had not given any explanation for said violation---Said recovery, would be of no avail to the prosecution---Prosecution had not been able to prove the motive---Impugned judgment of Trial Court was set aside and accused was acquitted extending him the benefit of doubt as the prosecution case was riddled with doubts.

[Case-law referred]

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence--- Scope--- Medical evidence was confirmatory in nature---Same could confirm ocular account with regard to the seat of injuries, the nature of injuries and the kind of weapon used in the occurrence, but could not identify the culprits.

[Case-law referred]

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

----Ss. 164 & 364---Extra-judicial confession---Scope---Extra-judicial confession, could be relied upon only when there were exceptional circumstances to show that it was actually made and was true---Extra judicial confession was a weak type of evidence and conviction on capital charge, could not be recorded on its basis alone.

[Case-law referred]

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

----S. 364---Judicial confession, recording of---Principles.

Following are the principles, relating to recording of judicial confession:--

(i) In criminal cases great responsibility rests upon the Courts to determine whether the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession is the result of any direct or indirect inducement, threat or promise from a person in authority, it would be treated as not voluntary.

(ii) In order to determine whether confession is voluntary or not, attending circumstances must be subjected to very close, minute and rigid scrutiny. Voluntariness and truthfulness of confession is to be evaluated on the considerations viz., the character and duration of custody; as to whether confessor was placed in a position to seek advice of his relatives or his lawyers; nature and quantum of proof which was available against confessor before he confessed and whether confessions were consistent with evidence which was available at the time when confession was made.

(iii) The Magistrate is bound to apprise the accused that he is before a Court free from the clutches of the police and that whether or not he makes a confession, he would not be remanded to police custody. The accused, as of right, is to be informed of the legal consequences of his making a confession and is to be given sufficient time to reflect. He is to be warned before and after such reflection that he was not bound to make a confession. After doing all such necessary formalities, the Magistrate would start taking down the statement of the accused. Fear of police and his likelihood of the return to police custody are the first and foremost things to be completely washed away from the mind of the accused before that his confessional statement is recorded.

(iv) All police officials whether in uniform or otherwise, including Naib Court attached to the Court, must be kept outside the Court and beyond the view of the accused.

(v) Confessional statement recorded under section 164, Cr.P.C., on oath is violative of section 5 of the Oaths Act, 1873, which prohibits administration of oath to an accused person. Such a confession is inadmissible.

(vi) Any lapse on the part of Magistrate in recording confession cannot always be treated as fatal to the evidentiary value of confession, if Court is satisfied that the said lapse has not in any way adversely affected the voluntariness or truthfulness of the confession.

(vii) Delay in recording the confessional statements of an accused by itself is not sufficient to adversely affect its validity. However, no hard and fast rule can be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation.

(viii) Judicial confession which is self-exculpatory cannot be used against the co-accused.

(ix) A judicial confession is to be rejected or accepted as a whole.

(x) Retracted judicial confession is seldom made a basis of conviction without being materially corroborated.

(xi) Judicial confession is sufficient for conviction if it is voluntary and true and requires no corroboration but as a rule of procedure the Court is required to seek corroboration of the same on material particulars.

(e) Criminal trial---

----Benefit of doubt---Single circumstance, was sufficient, if it would make a prudent mind doubtful about the guilt, benefit must be extended to accused as of right and not as a matter of grace.

[Case-law referred]

Tanveer Haider Bazdar for Appellant.

Sarfraz Ahmad Khichi, DDPP for the State.

Muhammad Sharif Karkhi Khaira for the Complainant.

2018 P Cr. L J 1128

[Lahore (Multan Bench)]

Before Abdul Rahman Aurangzeb, J

MUHAMMAD AWAIS KHAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CITY MIAN CHANUN DISTRICT KHANEWAL and 2 others---Respondents

Writ Petition No. 10839 of 2017, decided on 7th August, 2017.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Dishonestly issuing a cheque---Quashing of FIR, petition for---Claim of the complainant was that FIR was the conclusive proof of the default of the petitioner/accused; whereas, the claim of the petitioner regarding the nature and transaction of cheque in question required proper appreciation of version through evidence---Truthfulness or falsehood of allegation contained in FIR or the cross- version could only be ascertained during course of investigation or by the court of competent jurisdiction---Duty of the petitioner was to discharge his liability regarding the payment of agreement to sell arrived at between the parties---If any violation was committed by either party, same could not be ascertained without investigation---Case of the petitioner, was in the area of disputed question of facts, which could not be resolved in constitutional jurisdiction of High Court---Matter required recording of evidence by the Trial Court---No ground had been made by the petitioner falling within the realm of parameters of quashing the FIR---FIR could not be quashed at the initial stage---Trial Court was to decide the guilt or otherwise of the petitioner after sifting and evaluating the prosecution evidence---Alternate remedy was also available to the petitioner before the Trial Court, after submission of report under S.173, Cr.P.C.---Constitutional petition having no force was dismissed, in circumstances.

Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102 ref.

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

----S. 561-A---Constitution of Pakistan, Art.199---Quashing of FIR---Jurisdiction of High Court---Practice of quashing the FIR by High Court in exercise of its constitutional jurisdiction, was not approved by Supreme Court.

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

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

----Ss. 154 & 156---Constitution of Pakistan, Art.199---Investigation of cognizable offence---Statutory duty of Police---Police, had statutory duty under S.154, Cr.P.C., and statutory right under S.156, Cr.P.C., to investigate a cognizable offence, whenever a report was made to it disclosing the commission of cognizable offence---Conduct and manner of investigation, normally was not to be scrutinized under constitutional jurisdiction, which could amount to interference in Police investigation as the same could not be substituted by the court.

(d) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of criminal case---Constitutional jurisdiction of High Court---Scope---Resort to the provisions of Art.199 of the Constitution, seeking quashing of a criminal case was an extraordinary remedy, which could be invoked in exceptional circumstances; said provisions, could never be exploited as a substitute for the prescribed trial, or to decide the question of guilt or innocence of an accused on the basis of material which was not admissible in terms of Qanun-e-Shahadat, 1984.

Muhammad Mansha v. Station House Officer, Police Station City, Chiniot and others PLD 2006 SC 598 ref.

2018 P Cr. L J 1133

[Lahore (Multan Bench)]

Before Muhammad Qasim Khan, J

MUHAMMAD AYOUB---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 6 others---Respondents

Writ Petition No. 2553 of 2017, decided on 7th April, 2017.

(a) Constitution of Pakistan---

----Art. 5---Commission of crime---State responsibility---Scope---When an act is declared to be an offence, it is responsibility of the State to adopt all legal measures firstly to prevent such crime and secondly if offence has been committed then bring the culprits to book, put them before the Court for ultimate decision---Provisions of Art. 5 of the Constitution deals with loyalty to State and obedience to the Constitution and law---Constitutional duty of State functionaries to perform their duties to curb crimes as defined in statutes of the country.

(b) Constitution of Pakistan---

----Arts. 19 & 19-A---Penal Code (XLV of 1860), S. 295-C---Freedom of speech---Extent---Religious feelings, hurting of---Grievance of petitioner was that some accounts on social media Facebook were uploading inflammatory and blasphemous material, which accounts required to be proceeded against---Validity---Rights of every community were delicately balanced and freedom of speech/expression and information was also hallmark of the Constitution---Term 'right of expression' could not be stretched to such an extent that it could be used as a tool to defy religious thoughts or sacred personalities of one's religion---Right of expression could be allowed to thwart feelings of any religion on earth, because as a matter fact distortion of any religion on the pretext of right of speech /expression or information amounted to another form of terrorism and such was a fact that international community must concede---If authorities could not succeed to remove blasphemous content, as required by the Constitution and other laws applicable in the country, all such accounts or even the information system involved in pointed nefarious activities would be blocked at once as undertaken by Director General Pakistan Telecommunication Authority---High Court directed that a Bill should be tabled before the Parliament for deliberations and decision about amendment in S. 37 of Prosecution of Electronic Crimes Act, 2016 ("PECA") to authorize PTA to block information system in case service providers failed to remove blasphemous content; that procedure for right of appeal, revision, review be provided to the individuals or the system operators whose accounts, pages or systems were blocked by the authorities; that where in S. 9 of PECA, punishment for offences relating to terrorism, proscribed organizations, etc. had been provided, punishment of Ss. 295 to 295-C, P.P.C. may also be introduced; that rules be framed under PECA, which were though required, yet had not been framed; that the Government shall adopt all necessary measures for enhancing technical expertise and equipments of PTA authorities; and that since the annexures of the present writ petition carried material which was totally against Islamic faith and belief, the same could not be made public, as such, the same shall be sealed by the Deputy Registrar (Judicial), so that no one could have access to it or could even get its certified copies, except with specific approval of the Court.

Zulfiqar Ali Sidhu, Sher Zaman Qureshi, Waseem Mumtaz, Hafiz Allah Ditta Kashif, Ch. Salamat Ali Wains, Syed Athar Hassan Bokhari and Rana Miraj Khalid for Petitioner.

Najaf Ali Malik, Assistant Attorney General with Nisar Ahmad Director General IP&WA PTA, Khuram Siddiqui, Director Law PTA, Muhammad Naeem Ashraf, AHC (Consultant Law PTA) and Faheem Gul, Assistant Director Law for Federation.

Madam Ameena Sohail, Member Legal MIOT.

Azhar Amin Chaudhry, Deputy Secretary.

2018 P Cr. L J 1193

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD YOUNAS and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 8-T, 12-T, 545-T, 116-T and Capital Sentence Reference No. 3-T of 2010, decided on 5th March, 2018.

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

----Ss. 302(b), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Alteration of sentence of accused---Accused were charged for the murder of Police Officer who had solved some high profile cases of terrorism---Ocular account was furnished by two witnesses, who were related with deceased and were on way to visit the family---Said witnesses remained firm in their positions throughout the lengthy cross-examination---Eye-witness remained consistent---Other eye-witness was also cross-examined who remained firm---All that the defence desired to bring on record was to demonstrate that the witnesses were not present at the crime scene, as its case from the day one and that certainly did not warrant such an inordinate probe---Witnesses had survived entirely on their own and on a closer scrutiny, they were found inspiringly confirmatory in their depositions being least shaken on the fundamental issues of identification and roles played, captured by them in broad daylight, not far from their view---Identification tests had been carried out while observing anonymity as well as codal formalities and safeguards and, thus, safely provided confirmation of ocular account---No space was available to entertain hypothesis of substitution, otherwise a most rare phenomena antithetical to retributive human instinct, with no rancor or animus against the accused, situated in vastly divergent backgrounds, the witnesses had no apparent reason for false implication---Record transpired that Judicial Magistrate had faithfully supervised test identification parades wherein the witnesses had rightly picked the assailants, thus, prosecution evidence was found well synchronized to exclude every hypothesis of accused's innocence---Record revealed that accused and co-accused had been sentenced to death on two counts, however, forensic report to the extent of accused being in negative, though with no vitiating impact on his culpability, nonetheless, could be viewed as a mitigating circumstance to spare his life, therefore penalty of death awarded to accused was altered into imprisonment for life on each count---Remainder of the sentences were kept intact---Appeal was dismissed with said alteration in sentence of accused only.

Muhammad Shafi, Muhammad Sharif alias Jatta and Kareem Bukhsh v. The State PLD 1967 SC 167; Sher Muhammad and 2 others v. The State PLD 1995 SC 578 and Muddassar alias Jimmi v. The State 1996 SCMR 3 rel.

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

----Arts. 141 & 151---Cross-examination---Purpose and scope---Purpose of cross-examination was not to hound or harass a witness---Accused's right to cross-examine, a valuable right to be exercised with the framework provided under Arts. 141 & 151 of the Qanun-e-Shahadat, 1984.

Malik Muhammad Rafique, Basharat Ullah Khan, Sardar Muhammad Ashfaq Abbasi and Rao Abdul Rehman for Appellants.

Muhammad Fakhar Hayat Awan, Raja Fakhar Inayat and Ch. Khurram Tasaddaq for the Complainant.

Naveed Ahmad Warraich, Deputy District Public Prosecutor with Abdul Raziq, SI for the State.

2018 P Cr. L J 1224

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

OMAIR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 484, 505 of 2013 and Capital Sentence Reference No. 10-T of 2014, decided on 17th January, 2018.

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

----Ss. 302(b), 353 & 186---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharging of public functions, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that two pedestrians, when halted as suspects, fired upon the police party, due to which, one police official died, and the assailants decampted unscathed---Record showed that complainant was driving the motorbike, with deceased in his rear, when they confronted the accused persons at 9.45 p.m.---Tenor of the crime report suggested a sudden encounter wherein the accused resorted to firing at spur of the moment and fled from the scene immediately thereafter---Surprised by a sudden and brief assault during the night would certainly leave a little space to the witnesses to meticulously capture details thereof, particularly descriptive features of the assailants in the absence of a source of light conspicuously missing in crime report as well as in the notes of site plan---Lamp post and the electric bulb on a nearby gate though were mentioned in the site plan but without reference to distance inter se---Sketch mentioned one assailant only---Motorbike used by the constable was never taken into possession nor found mentioned in the site plan---Claim of prosecution regarding identity of the assailants purportedly picked up by the witnesses subsequently during a belatedly conducted test identification parade warranted serious reconsideration inasmuch as human response in a sudden crises situation, that too, momentary in duration would seldom space observations without risk of error---Accused were arrested from different places in quick succession with cache of contrabands on 28.5.2012 which was unexpected by all means and in that backdrop, results of test identification parade conducted as late as on 16.6.2012 hardly constituted a significant piece of evidence, particularly in view of the objection of accused raised before the Judicial Magistrate that they were exposed to the witnesses---Circumstances and facts of the prosecution case suggested that the deceased sitting behind the complainant carried a submachine gun subsequently taken over by the latter, who fired twice upon the assailants without any consequence and that while fleeing they also came within the view of police officials on patrol duty, admittedly armed with automatic official weapons---Mute response of three witnesses in the face of a fallen colleague at the hands of the accused persons, within their view as well as reach, was mind boggling---Solitary pictorial sketch with positive Forensic Science Agency Report about pistol alone, excluded presence of the second accused and, thus, given inseparable joint role assigned to them, culpability of any single of them could not be singularly determined through any contemplative methodology without potential risk of fatal error---Even otherwise, positive forensic report did not advance prosecution case in view of dispatch of casings subsequent to arrest---Admittedly, law enforcement official laid his life while his boots on, however, circumstances leading to his death being far from clear, the accused persons could not be convicted and sentenced on moral satisfaction alone and as such were entitled to the benefit of doubt embedded in the poorly investigated prosecution case and, thus, it would be unsafe to maintain the conviction---Appeal was allowed and accused were acquitted from the charge in circumstances.

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

----Ss. 302(b), 353 & 186---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharging of public functions, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was faltering on medical side as well, both in terms of locales as well as number of shots received by the deceased---Crime report showed that the accused persons hit the deceased distinctly with four fire shots landing on different parts of his body, but the autopsy report had shown two entry wounds with corresponding exits, mistakenly viewed as independent wounds---Similarly, deceased sitting behind the complainant on a motorbike seat with little inter se distance could not possibly receive injury on his chest---Blackening around the wounds suggested a close blank and, thus, miraculous escape by the complainant sitting next from six fire shots in retrospect suggested his absence from the crime scene.

Basharat Ullah Khan and Raja Amanat Ali for Appellants (at State expense).

Umar Hayat Gondal, Additional Prosecutor-General assisted by Asad Mehmood Qureshi for the State/Complainant.

2018 P Cr. L J 1284

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

NAZIR IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 30-J and Murder Reference No. 25 of 2014, decided on 24th January, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for the murder of the son of complainant---Ocular account was furnished by two witnesses including complainant regarding their presence at the crime scene as well as details of the occurrence was confidence inspiring---Said witnesses were in a comfortable unison on all the salient features of the prosecution case as well as details collateral therewith and had seemingly no axe to grind against the accused---Narrations of the said witnesses were duly corroborated by medical evidence and supported by recovery and a feud raging between the deceased and the accused---Circumstances spelt out independently could be gone into unreservedly---Motive alleged in the crime report as a rancour on account of second marriage of the deceased appeared to be far from being factual and his encounters with his previous wife seemingly cost him his life---Magnitude of violence was commensurate with intensity of grievance and frustration, a circumstance additionally supporting the said hypothesis---Penalty of death was altered into imprisonment for life in circumstances.

Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Raja Ghaneem Aabir Khan for Appellant.

Sh. Waqar Azeem Siddiqui for the Complainant.

Umar Hayat Gondal, APG with Arif, ASI for the State.

2018 P Cr. L J 1319

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 212 of 2017, decided on 31st January, 2018.

Penal Code (XLV of 1860)---

----S. 377---Punjab Forensic Science Agency Act (XIII of 2007), S. 9(3)--- Qanun-e-Shahadat (10 of 1984), Art. 164--- Sodomy---Appreciation of evidence---Accused was indicted for carnal assault on the son of complainant and filmed the process---Prosecution case was structured upon the statement of victim, who had furnished graphic details of carnal assault---Cross-examination on the witness and plea taken about the charge remained inconsequential---Forensic report prepared by analyst could be looked into without reservation in view of S. 9(3) of the Punjab Forensic Science Agency Act, 2007 and as such could be pressed into service to support ocular account in place of clinical finding---No traditional static mode was available to be followed to prove a criminal charge as court must adopt a dynamic approach to employ scientific methodologies to reach out a culprit in the new era of forensic---Record transpired that material relied upon by the prosecution to derive home the charge could be received in evidence in view of the provisions of Art. 164 of the Qanun-e-Shahadat, 1984, read with S. 9(3) of the Punjab Forensic Science Agency Act, 2007---Absence of clinical findings, having regard to the peculiar facts and circumstances of the case could be dispensed through substituted reliance upon forensic data, procured through technical system, which was not amenable to human interference---Science did not purger---Even otherwise, ocular account alone was sufficient to sustain the charge inasmuch as there was no earthly reason for the child or his family hailing from a rural neighbourhood to put forth a fake charge by incurring perennial embarrassment---Criminal revision was dismissed in circumstances.

G. Farooq Awan for Petitioner.

Sardar Nasir Abbasi for the Complainant.

2018 P Cr. L J 1347

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Sardar Ahmad Naeem, JJ

MUHAMMAD AFZAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 213411-B of 2018, decided on 5th June, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention---Ad-interim pre arrest bail, confirmation of---Merits of the case to be touched upon at bail stage---Scope---Delay in recording statement of prosecution witnesses under S. 161. Cr.P.C.---Effect---Common intention---Scope---Two professional lawyers were done to death in brutal manner in front of the court of law, creating panic in the society---Role of lalkara had been ascribed to the petitioner, however, about three months later two prosecution witnesses alleged in the their statements recorded under S. 161, Cr.P.C. that said accused had hatched conspiracy of the present occurrence---Validity---High Court observed that no one be dealt beyond the scope of safe administration of justice---Merits of the case could be touched upon in a matter relating to pre-arrest bail---When it was alleged that petitioner was present at the spot, prima facie provisions of S. 109, P.P.C. were not applicable and at the most it was a case under S. 114, P.P.C.---Allegation of hatching the conspiracy was without legal credence as, admittedly, statements of two prosecution witnesses under S. 161. Cr.P.C. were recorded with the delay of three months---Allegation of lalkara ascribed to the petitioner was found false and police found him innocent---Co-accused with the allegation of abetment had already been admitted to bail by the Trial Court---In view of previous civil/criminal hostility between the parties possibility could not be ruled out that the petitioner was falsely dragged into the present case---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347; Abdul Khaliq v. The State 1996 SCMR 1553; Sahib Gul v. Ziarat Gul and others 1976 SCMR 236 and Muhammad Iqbal v. The State 1984 SCMR 930 ref.

Aazar Latif Khan for Petitioner.

Khurram Khan, Deputy Prosecutor-General for the State.

Muhammad Ahsan Boon for the Complainant.

2018 P Cr. L J 1380

[Lahore]

Before Ali Baqar Najafi and Tariq Iftikhar Ahmad, JJ

ABDUL HAMEED---Petitioner

Versus

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

W.P. No. 161594 of 2018 in Criminal Appeal No. 153529 of 2018, decided on 12th June, 2018.

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

----Ss.9(a)(x)(b) & 32---Suspension of sentence---Contractual liability---Substantial portion of sentence already served by convicts---Petitioners were accused persons alleged to have committed offence of cheating the members of public-at-large---Trial Court convicted accused persons and they were sentenced to imprisonment for seven years each---Plea raised by accused persons was that they had undergone substantial portion of their sentence---Validity---Accused had already undergone more than 2/3rd portion of the sentence awarded---Appeals were not likely to be heard in near future and the accused had faced agony of trial for about three years---Accused were not owners of the land but had agreement to sell with owners of the land and parties were already engaged in civil litigation---Trial Court did not discuss whether a contractual liability could possibly be equated with cheating public-at-large and such was a legal infirmity in the judgment passed by the Trial Court---High Court, in exercise of Constitutional jurisdiction, suspended sentence awarded to accused persons---Bail was allowed in circumstances.

Saeedullah Soomro and another v. The State through National Accountability Bureau 2004 SCMR 660 and Makhdoom Javed Hashmi v. The State 2008 SCMR 165 rel.

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

----S. 9(a)(ix)---Cheating members of public-at-large---Liability, non-determination of---Effect---Liabilities of accused persons were not determined by Trial Court while recording judgment of conviction against them---Such was prima facie, an irregularity/ illegality.

Qazi Misbah-ul-Hassan and Muhammad Asad Manzoor Butt for Petitioners.

2018 P Cr. L J 1434

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz and Sardar Ahmed Naeem, JJ

DILAWAR HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 359 of 2012, heard on 28th February, 2018.

(a) Drugs Act (XXXI of 1976)---

----Ss. 23, 27, 30 & 17---Manufacturing and possessing substandard, spurious and misbranded drugs---Appreciation of evidence---Benefit of doubt---Place of occurrence was situated in District "M"; whereas Office of Provincial Quality Control Board (PQC Board) was situated in other District---Prosecution case was silent as to how the permission was obtained from the PQC Board so swiftly---No time of raid was mentioned in the crime report---Said features gave rise to reasonable doubt regarding the mode, manner and time of occurrence---Acquitted co-accused was present at the place of occurrence while accused was not present there at the time of raid by authorities---None of three witnesses of search and seizure named the accused in their statements before the court, so as to establish his connection with manufacturing or possessing of recovered substance---House in question was being jointly inhabited by acquitted accused persons and accused---No evidence was brought on record to connect accused with the recovered substance---Prosecution had failed to prove essential ingredients of S. 23 of the Drugs Act, 1976---None of the witnesses of search and seizure were residents of the vicinity where the place of recovery was situated---Under S. 103, Cr.P.C., officer conducting the proceedings, was bound to call upon two or more respectable inhabitants of the locality, but same had not been done---Under S. 17 of Drugs Act, 1976, it was mandatory that person appointed as Provincial or Federal Drugs Inspector, must be having prescribed qualification and his appointment should be notified in the official gazette, but no such notification was issued in respect of the person who acted as Drug Inspector in the case---Raid, in circumstances, was conducted by incompetent person---Accusation of manufacturing spurious and misbranded drugs was to be proved on the basis of some positive evidence and not through hypothesis---Prosecution was obliged to prove that recovered drugs were belonged to none other than the accused, but it had failed to do that---Prosecution evidence was not considered worth consideration against acquitted co-accused, but same was taken into consideration in respect of the accused---No evidence having been brought on record to draw a distinguishing line between the case of accused and acquitted co-accused, accused could not be awarded conviction on the same set of evidence---Prosecution having failed to prove the charge beyond any shadow of doubt, conviction and sentence of accused, were set aside and he was acquitted of the charge giving him benefit of doubt.

Drug Inspector v. Muhammad Ashiq Mirza and others NLR 1993 Cr.LJ 102; Shaukat Hayat v. The State 1982 PCr.LJ 48; The State through Advocate-General High Court of Sindh, Karachi v. Iqbal Ahmad Khan 1996 SCMR 767 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

(b) Administration of justice---

----If the law required a thing to be done then it must be performed in the same manner.

Aurangzeb Gillani for Appellant.

Shahid Aleem, Additional Prosecutor-General for the State.

2018 P Cr. L J 1476

[Lahore]

Before Aalia Neelum and Ch. Abdul Aziz, JJ

MUHAMMAD YAQOOB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 129049 of 2018, heard on 21st June, 2018.

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

----Ss. 9(c) & 36---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Prosecution witness deposed that the colour of recovered charas was greenish-brown, whereas the report of Forensic Science Laboratory, had revealed the colour of charas as blackish-brown---Complainant, neither in complaint, nor in his statement before court, mentioned the time as to when accused was nabbed---Prosecution had not been able to discharge its onus of proving the safe custody of recovered substance and such omission gave rise to doubt---Original report issued by Forensic Science Laboratory was not tendered in evidence, instead its attested photocopy was placed on record---Prosecution was required to produce the original document and not its photocopy, even if attested---Production of photocopy of report purported to have been issued by Government Analyst was in no manner in consonance with S.36 of Control of Narcotic Substances Act, 1997---Prosecution, in circumstances, was legally obliged to prove the contents of Laboratory report by calling the Government Analyst as witness during trial---Failure of prosecution to do the needful had rendered the report as of no legal consequences---Secondary evidence (photocopy), in respect of a document could only be tendered if it was shown to have been destroyed or lost---Before placing on record the copy of report, no explanation for failure to produce its original was offered by prosecution---Court could not allow to tender secondary evidence, in circumstances---Report in question having not been brought on record in accordance with law, same was not worth consideration in any manner---Said lacunae and shortcomings raised reasonable doubt, benefit of which would go to the accused---Conviction and sentence awarded to accused, were set aside, and he was acquitted of the charge and was ordered to be released forthwith, in circumstances.

Muhammad Siddique alias Bheria v. The State 2005 PCr.LJ 726; Muhammad Bux v. The State 2011 PCr.LJ 1466; Gul v. The State PLD 1977 Kar. 1019 and Rustam Ali Pitafi v. The State 2015 PCr.LJ 1762 rel.

Muhammad Abbas Shah for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2018 P Cr. L J 1495

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Sardar Ahmed Naeem, JJ

RASHEED AKBAR KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 105 of 2014, decided on 31st May, 2018.

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

----Ss. 465, 468 & 471---Representation of the People Act (LXXXV of 1976), Ss.78 & 82---Forgery, forgery for purpose of cheating, using as genuine a forged document---Corrupt practice in elections---Appreciation of evidence---Benefit of doubt---Accused had filed his nomination papers to contest General Elections, 2002 with allegedly false B.A. degree, attested by co-accused---Trial Court seized with the matter convicted and sentenced the accused---Original B.A. degree, photocopy of which was allegedly annexed by accused with his nomination papers, was neither brought on record during the course of investigation nor was exhibited during the proceedings---Photocopy being secondary evidence, was inadmissible and was not proved in accordance with law---Person relying on a document was obliged to prove the same---Photocopy could not be read in evidence to record conviction against accused---Roll number and year of passing B.A. examination, were not mentioned in the nomination papers---Nothing was available on record as to from where the complainant had obtained the information---Said aspect alone, would create flaw in the authenticity of the prosecution version---Prosecution evidence to the extent of co-accused was disbelieved and he was acquitted of the charge on the same set of evidence---Accused along with his brother, was being prosecuted by the complainant in the other FIR for the similar offence and with the same allegation---Present case as well as the other case, were tried by the same Trial Court and the same evidence was recorded almost on the same dates of hearing---Except few variations in the statements of the witnesses, evidence was not recorded independently in each case---Stereotype judgment based on same type of evidence had been delivered by the Trial Court in both the cases, which had vitiated the proceedings against accused---Such practice was not only against the very spirit of law, but against the principles of natural justice---Conviction and sentence passed by the Trial Court, were not proper and same could not sustain---Prosecution had failed to establish its case against accused beyond reasonable doubt---Conviction and sentence recorded against accused by the Trial Court, were set aside and he was ordered to be acquitted of the charge, in circumstances.

State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Zia Ul Hasan v. The State PLD 1984 SC 192; Abdul Qayyum v. Muhammad Rafique 2003 SCMR 104; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371 and Asif Ali Hashmi through 4 Legal Heirs v. Muhammad Arif Mian and 4 others PLD 2015 Isl. 191 ref.

(b) Criminal trial---

----Benefit of doubt---Benefit of doubt, was to be extended in favour of accused not as a matter of grace rather as a matter of right where prosecution would fail in establishing its case against accused beyond doubt.

Muhammad Mansha v. The State 2018 SCMR 772 ref.

Azam Nazeer Tarar and Mazhar Ali Gahloon for Appellant.

Ch. Muhammad Jahangir Wahla, Deputy Attorney-General for the State.

Muhammad Ahsan Boon for the Complainant.

2018 P Cr. L J 1555

[Lahore]

Before Ali Baqar Najafi and Tariq Saleem Sheikh, JJ

Major (R) MUHAMMAD ZULFIQAR ALI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

Writ Petition No. 174343 of 2018, decided on 6th March, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii), (iv), (v), (vi), (ix), (x), (xii) & 17(d)---Criminal Procedure Code (V of 1898), Ss. 233 & 235---Consolidation of References---Separate offences---Petitioner was accused facing trial in two References pending before Accountability Court---Plea raised by petitioner was that both References would be consolidated and decided by one judgment---Validity---Petitioner and other two persons were accused of having committed criminal breach of trust of property of members of the Society and were charged for offences under S. 9(a)(iii), (iv), (x) and (xii) of National Accountability Ordinance, 1999; whereas other reference was against six accused including petitioner and allegation against them was of misuse of authority, fraud in allotment, cancellation, replacement of plots, making double/triple allotment of same plots, reducing size of plots and cheating members of public at large to get illegal gains further allegation was that of maintaining parallel bank account for the Society's funds and misappropriated public money---Petitioner, in the second reference was charged with offences under S. 9(a)(iii), (iv), (vi), (ix), (x) & (xii) of National Accountability Ordinance, 1999---Charges in two References were distinct and fell within the mischief of different provisions of National Accountability Ordinance, 1999---Number of accused persons was also different and set of witnesses cited by prosecution in two References also varied, therefore, both references must proceed independently---Distinguishing features of the two References did not allow them to be clubbed or decided by a consolidated judgment and any attempt to do so would cause serious miscarriage of justice and the same could not be countenanced---High Court declined to interfere in the order passed by Accountability Court as the same was based on cogent reasons---Constitutional petition was dismissed in circumstances.

Sri Ram Varma v. The State AIR 1956 All. 466; Ramesh M. Udeshi v. The State 2002 PCr.LJ 1712; The State v. Mirza Azam Beg, P.C. and another PLD 1964 SC 120 and Ahmad Khan v. Commissioner, Rawalpindi Division and another PLD 1965 (W.P.) Peshawar 65 ref.

S.M. Zeeshan Mirza assisted by Zahir Abbas for Petitioner.

2018 P Cr. L J 1574

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

AKBAR and others---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 50-J and Murder Reference No. 109 of 2013, decided on 7th December, 2017.

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

----Ss. 302(b), 324, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Withholding of best evidence---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party assaulted on complainant party with firearms, due to which, three persons died and one received injuries---Motive behind the occurrence was previous incidents in which brother of accused received injuries, while brother-in-law of co-accused was murdered and cases were registered against the complainant party---In order to prove its case, the prosecution had produced eight witnesses including complainant and injured---Record showed that occurrence took place at about 1.00 p.m. and application for registration of FIR was presented by complainant before the Investigating Officer at 3.40 p.m., who was present in the area of concerned police station in connection with patrolling duty---Investigating Officer forwarded the application to police station through Police Official for the purposes of registration of FIR---Said Police Official was not produced by the prosecution before the Trial Court---Non-appearance of said Police Official as a witness had caused a dent in the case of prosecution---Record showed that complainant was an illiterate villager and the application was drafted by the son of injured, who was not produced as a witness---Record transpired that six assailants participated in the incident which resulted into death of three persons and firearm injuries to one person---Two assailants filed appeal, two were acquitted by the Trial Court, while the remaining two were initially declared as proclaimed offenders but subsequently, became victim of extrajudicial killing---In addition to said six assailants, three other persons were also implicated in the case on the charge of abetment, but were acquitted by the Trial Court---In order to bring home the guilt of the accused nominated in the crime report, three witnesses including complainant and injured appeared in the witness box---Record showed that two acquitted accused were alleged to have actively participated in the commission of crime and the nature of accusation against them was almost similar as ascribed to the present accused and that too had arisen from the testimony of same set of witnesses---Statements of the three eyewitnesses were not considered worth reliance and both the accused were acquitted from the case---Strong corroboration, in circumstances, was required to uphold the conviction of the accused persons, which was missing---Deposition of three eyewitnesses showed that the assailants and the complainant party were in worst of terms with each other on account of enmity arising out of blood-feud and multiple cases of criminal as well as civil nature---Present accused persons were not accused or complainant in any of such cases---Crime scene was situated at a place away from the houses of both the parties and none of the witnesses was the resident of the place of occurrence and their houses were situated 4/5 squares away therefrom---Neither the witnesses nor the assailants had any agricultural land around the place of incident---Witnesses while offering explanation for their presence at the crime scene had stated that deceased was married, and due to some family dispute, the lady left the house of deceased and went to the house of her parents---Witnesses allegedly were present in the house of father of that lady in pursuance of effort for compromise between the couple and acquired knowledge about the presence of assailants on the path leading to their house---None of the witnesses disclosed the source of their information regarding presence of the accused and co-accused at the place of incident---Neither the wife of deceased nor the father of wife of deceased appeared in the witness box in order to prove the presence of witnesses in their house for making efforts for compromise of the couple---By not producing the wife and father-in-law of the deceased, the best evidence to provide credence to the presence of witnesses at the crime scene was withheld, thus adverse inference could be drawn against the prosecution under Art. 129(g), Qanun-e-Shahadat---Eyewitnesses had narrated each and every shot fired by the assailants and even the locale of injuries caused therefrom---Prosecution had brought on record that the witnesses were under a massive assault, which did not appeal to logic that instead of running for their lives, they were focusing on the roles being performed by respective accused---Such was in conflict with natural human response---Complaint showed that Investigating Officer along with complainant proceeded to crime scene subsequent to 3.40 p.m. and even 30-minutes thereafter shifted the injured to hospital---Medical Officer had stated that deceased was received in the hospital in injured condition at 3.35 p.m.---Such a position showed that much before the arrival of police and complainant, someone had shifted the deceased from the crime scene to the hospital---Deceased persons were wife and sons of the complainant and they received firearm injuries within his sight---Wife and one son of complainant succumbed to the injuries, however his one son and one witness were in injured condition till that time---As per normal and natural human reflexes, before doing anything else, the complainant should have made best of his efforts to shift the injured persons from the crime scene for medical treatment; however, instead of shifting them to the hospital, the complainant proceeded to inform the police after about fifteen minutes of the occurrence and left the victims behind at the crime scene and that too in precarious condition---Said feature of the case casted doubt about the presence of witnesses at the crime scene---Injured witness held the proclaimed offender and acquitted accused as responsible for having caused two firearm injuries on his right leg---Record revealed that his evidence was not considered favourable for awarding conviction to the acquitted accused---In the present case, when injured witness was disbelieved even to the extent of the accused who allegedly had caused him one of the firearm injuries, his testimony for upholding the conviction of the accused could only be accepted if strongly corroborated and supported from other circumstances---Injured witness was one of the accused in the murder case, which was the motive or immediate cause of the present occurrence---Injured witness was one of the prime targets, however, he received simple injuries and that too on non-vital part of his body---Survival of injured witness appeared to be contrary to the theory of the prosecution case---Record showed that post-mortem examination of deceased lady was conducted after about 10 hours and 50 minutes of the occurrence---Dead body of male deceased was examined by the Medical Officer after about 18-hours of the occurrence---Such unexplained delay in holding autopsy was always looked with doubts and suspicions, which would adversely reflect the case of prosecution, more importantly, when the ocular account was furnished by partisan witnesses who were also disbelieved to the extent of acquitted accused persons---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Rafique and others v. State and others 2010 SCMR 385 and Muhammad Ilyas v. Muhammad Abid alias Billa 2017 SCMR 54 rel.

(b) Criminal trial---

----Witness---Statement of---Scope---Legal worth of the testimony of a witness depended upon his credibility which was indivisible in nature---If witness was found not worthy of any credence to the extent of one set of accused who actively participated in the crime, it appeared to be wholly unjust to place explicit reliance on his testimony for awarding conviction to a similarly placed set of accused.

Mohamed Fiaz Bakhsh v. The Queen PLD 1959 Privy Council 24 and Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive, proof of---Motive behind the occurrence as alleged by the prosecution was previous criminal cases wherein brother-in-law of accused lost his life while brother of other accused received firearm injuries---Record showed that the parties were at daggers drawn with each other on account of manifold cases, however, the prosecution had claimed that the present occurrence was outcome of said cases---Injured witness of the present case along with his two brothers were sentenced to death---Assailants, in circumstances, should not have let injured witness alive---Acquittal of co-accused, who was brother in law of the deceased of that case, had left a big dent regarding the motive of the prosecution case---Projected motive, in circumstances, appeared to be too remote to fascinate the court to take it as a corroborative piece of evidence against the accused persons.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that two 303 rifles were recovered on the disclosure and pointation of accused persons---Report of Forensic Science Laboratory showed that the rifles matched with the crime empties which were secured from the crime scene---Said articles were forwarded to the office of Forensic Science Laboratory together, hence were of no legal significance---Witness, who took the weapons and empties to Forensic Science Laboratory was never produced as witness---Even otherwise, the positive report of Forensic Science Laboratory was only a corroborative piece of evidence and on that score alone, conviction could not be awarded or upheld and more importantly, in cases when the ocular account was found not worthy of any credence.

Riaz Ahmed v. State 2010 SCMR 846 rel.

Sikandar Zulqarnain for Appellant.

Azam Nazeer Tarar for the Complainant.

Rana Sultan Ahmed, Additional Prosecutor-General for the State.

2018 P Cr. L J 1667

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 220033-B of 2018, decided on 13th August, 2018.

Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 20, 21 & 24---Penal Code (XLV of 1860), Ss. 420 & 109---Disseminating pictures of a woman on social media for soliciting monetary and carnal favours---Bail, refusal of---Accused, who was in an intimate relationship with the female victim, allegedly distributed the latter's obscene pictures through a fake social media account in order to get sexual and financial favours from her---Accused unmistakably featured with the victim in the pictures secured during investigation and as such his argument that the pictures were manipulated to frame him was preposterous---Victim's naive intimacy with the accused could not be pleaded as defence by the accused for his grievous misconduct based upon a criminal betrayal resulting into unmitigated intrusion in a woman's privacy---Accused could not claim bail as a matter of right merely on the ground that the offences alleged did not fall within the prohibitory clause of S. 497, Cr.P.C., as in appropriate cases bail could be denied justifiably in offences falling outside such prohibition---Accused was denied post-arrest bail accordingly.

Asim Nawaz Guggar for Petitioner.

Yasir Daud Malik for the Complainant.

2018 P Cr. L J 12

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

ABDUL HAQ---Appellant

Versus

The STATE through Additional Advocate-General, Darul Qaza, Swat and another---Respondents

Criminal Appeal No. 85-M of 2016, decided on 2nd March, 2017.

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

----S. 376--- Rape--- Appreciation of evidence--- Ocular account corroborated by medical evidence---Prosecution case was that the accused committed sexual intercourse with a minor girl---Victim was complainant of the case, had narrated the occurrence in the mode and manner it had happened---Record showed that statement of minor-victim had been recorded after due satisfaction of the court---Victim had herself disclosed the name of the accused-appellant to have subjected her to sexual intercourse---Victim being minor child of the age of nine years could not malafidely charge the accused for such a heinous offence---Statement of the victim showed that she was a truthful witness---Victim was medically examined by Medical Officer, whose statement revealed that there had been vaginal and perennial tears that had already been stitched and the hymen had been perforated and injured---Medical Officer had been subjected to cross-examination at length by the defence but the fact had not been denied that in-fact complainant/victim was subjected to sexual intercourse in a very harsh manner---Defence had alleged that the Forensic Science Laboratory report in respect of presence of human semen in vagina was negative---Mere negative report in respect of non-availability of human semen in the vagina could not be considered ground for acquittal---Attending circumstances suggested that there were reasons to believe the perforation of the hymen as by the time minor might have being unable to resist extreme pain which had left the accused-appellant to have penetrated outside---Circumstances established that offence of rape had been committed with the complainant-victim---Appeal against conviction was dismissed in circumstances.

Muhammad Abdul Khaleque and others PLD 1960 SC 325; Hayat v. Jahangir and others PLD 2002 SC 590; Ayub Masih v. The State PLD 2002 SC 1048; Rawato and another v. The State 2000 PCr.LJ 333; Ibrar Hussain and others v. The State and another 2007 SCMR 605; Mulazim Hussain and 2 others v. The State 2007 YLR 723; Muhammad Shahid v. The State and others 2016 YLR 616 and Pervaiz Maseeh v. The State 2016 YLR 2611 ref.

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

----S. 376---Rape---Appreciation of evidence---Delay in lodging FIR---Effect---Occurrence took place at 7.30 a.m. on 16.5.2015 and the matter was reported to the police at 2.30 p.m. on 18.5.2015 while the FIR was chalked out at 3.30 p.m. on the same day---Circumstances showed that FIR was lodged with a delay of two days---Fact remained that due to fear she had not disclosed the incident even to her mother; in such a situation, even if report had been lodged with delay, it would not be beneficial for the accused.

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

----S. 376--- Rape--- Appreciation of evidence---Solitary statement of victim---Evidentiary value---Conviction could be awarded in rape cases, on the sole testimony of the victim provided that the statement of victim was confidence inspiring.

Abdul Halim Khan for Appellant.

Barrister Asad Hameed-ur-Rahman, State counsel and Muhammad Haleem Khan for Respondents.

2018 P Cr. L J 50

[Peshawar]

Before Waqar Ahmed Seth and Ishtiaq Ibrahim, JJ

Haji ROOH-UL-AMIN---Petitioner

Versus

SAEED and others---Respondents

W.P. No. 2710-P of 2015, decided on 8th September, 2016.

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

----Ss. 22-A & 22-B--- Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, R. 4---Application for registration of case against accused persons was dismissed by Ex-Officio Justice of Peace---Contention of applicant was that a decree in civil suit was passed in his favour and on the basis of said decree, mutation was registered and attested but entry of khasra No. was left out intentionally and maliciously---Complainant applied to the Justice of Peace for direction for registration of case against patwari halqa and others, which application was dismissed---Validity---Admittedly, Patwari Halqa was a public servant but other three persons were private individuals---If a public servant was involved in a case of corruption, a case could be registered against him by the Anti-Corruption Establishment and not by the local police---Local police in such cases had no jurisdiction to investigate or register FIR against a public servant nor it was in the domain of Ex-officio Justice of Peace to order for registration of FIR in cases of corruption---Separate procedure and proper forum was available in such-like cases---Constitutional petition was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999---

----Rr. 3, 4 & 10---Inquiry---Object and scope---Under the Khyber Pakhtunkhwa Anti-Corruption Establishment Rules, 1999, a different procedure had been laid down for registration of case against public servant; first, the Director Anti-Corruption had to direct a preliminary inquiry, followed by open inquiry; if any case was made out against a public servant on the material collected during the inquiry, he had to accord sanction for registration of the case---Such cases shall be registered by the Establishment at the police station of the establishment having the jurisdiction---Registration of case of corruption by local police at ordinary police station other than the police station of Anti-Corruption Establishment was not admissible.

Malik Manzoor Hussain for Petitioner.

Nemo (motion) for Respondents.

2018 P Cr. L J 69

[Peshawar (D.I. Khan Bench)]

Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ

HAQ NAWAZ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 31-D of 2016, decided on 20th February, 2017.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Scope---Prosecution case was that the deceased then injured, lodged the crime report that accused-appellant armed with .303-bore rifle, fired at him and he got hit on his left thigh---Record showed that the deceased then injured did not make the report under expectation of death, but narrated the circumstances which resulted in his death---Deceased was not expecting death because the injury was on his left thigh, which was normally called non-vital part of the body---Medical Officer, however, stated the cause of death to be the injury on main vessels leading to extensive blood loss and shock---Signatures of deceased then injured and the Police Officer were available on the FIR, lodged by the injured himself immediately after the incident, eliminated the possibility of any influence, therefore, the same could be termed as dying declaration and conviction could be based on the same.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Majeed v. The State 2010 SCMR 55 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 rel.

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

----Art. 46---Dying declaration---Admissibility---Not necessary for the admissibility of dying declaration that the deceased at the time of making the report should have been under expectancy of death.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 512---Qatl-i-amd---Appreciation of evidence---Statement of witness in absence of accused---Scope---Prosecution case was that complainant in injured condition lodged report that accused-appellant while armed with .303-bore rifle fired at him, which hit on his left thigh---Complainant/ injured succumbed to the injury---Ocular account was furnished by a witness---Record showed that witness of ocular account appeared before the court on 29.8.2015 but his statement could not be recorded due to absence of counsel for the complainant---Said witness was abandoned being won-over on 2.9.2015---Application was later on submitted for transferring the statement of said witness already recorded during trial under section 512 Cr.P.C., which was allowed and statement of said witness was transferred---Said witness was neither dead nor his attendance could not be procured---Said transfer of statement of witness was legally not correct because the accused-appellant was deprived of cross-examining the witness---Statement of witness of ocular account, in circumstances, was not worth reliance and was ruled out of consideration.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in--- Medical evidence--- Mitigating circumstances---Prosecution case was that complainant in injured condition lodged a report that accused-appellant while armed with .303-bore rifle fired at him, which hit on his left thigh---Complainant had stated that there was no motive for the occurrence and he did not know as to why the accused-appellant fired at him---Complainant/injured succumbed to the injury---Ocular account was furnished by a witness and medical evidence---Record showed that statement of witness of ocular account was not worth reliance and was ruled out of consideration---Dying declaration of the deceased, then injured, was available on record which was sufficient for conviction of accused-appellant---Medical Officer deposed that deceased, then injured, was examined on 17.6.2009 at about 7.00 p.m. and on the same day at about 9.00 a.m. autopsy on the dead body of deceased was conducted---Said statement of Medical Officer about timing of examination and autopsy of deceased appeared to be slip of tongue because it was not possible that autopsy on the dead body of the deceased was conducted before his death---Medical Officer clarified during cross-examination that autopsy on the dead body of the deceased was conducted on 18.6.2015---Postmortem report showed the date as 18.6.2015 at its end---Said contradiction could not be termed as material contradiction, fatal to the prosecution case, but could be termed as mitigating circumstance---Deceased, then injured, reported that there was no motive for the occurrence and he did not know as to why the accused-appellant fired at him---Deceased, then injured, received a single fire-shot and that too on non-vital part of his body---Deceased then injured, was at the mercy of the accused-appellant but he did not repeat the fire---Circumstances and overall facts of the case established that there was no motive for the occurrence and no fire was repeated by the accused, which constituted mitigating circumstances in the case---Appeal was partially allowed in circumstances and sentence of death was converted to imprisonment for life.

Falak Sher v. The State 1999 SCMR 2432 and Abbas Hussain and another v. The State and another 1992 SCMR 320 rel.

Muhammad Ismail Khan Alizai for Appellant.

Kamran Hayat Miankhel, A.A.-G. for the State.

Muhammad Zahid Khan for the Complainant.

2018 P Cr. L J 84

[Peshawar]

Before Abdul Shakoor, J

EID BADSHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Bail Petition No. 172-B of 2017, decided on 31st May, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324 & 337-D---Attempt to commit qatl-i-amd, hurt---Bail, grant of---Further inquiry---Accused was singularly and directly charged in FIR for making effective firing at complainant party due to which nephew of complainant sustained injuries---Investigating Officer recovered nine empties from the place of occurrence which were sent to the Forensic Science Laboratory---According to Fire Arms Expert report said empties were fired from different weapons which certainly raised a question as to whether the act was the doing of one person or more---Medico Legal Certificate of the victim suggested that he sustained wound on the back side of chest and in that way the Medico Legal Certificate did not support the case of prosecution---Mere abscondance was not a conclusive proof of guilt of accused person---Accused had made no confession before the competent court nor any weapon of offence had been recovered from his possession or at his instance and pointation---Accused was behind bars since a year and no more required to the local police for further investigation and keeping him behind bars would serve no useful purpose---Bail was granted accordingly.

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

----S. 497---Bail---Abscondance---Scope---No doubt abscondance was a relevant fact but it could be used as a corroborative piece of evidence which could not be read in isolation but had to be read along with substantive piece of evidence.

Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

Haji Maalik Rahman Khattak for Petitioner.

Qudratullah Khan Gandapur, Assistant A.-G. for the State.

Malik Akhtar Nawaz for the Complainant.

2018 P Cr. L J 104

[Peshawar (Bannu Bench)]

Before Abdul Shakoor, J

SHAHZAD KHAN---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B.A. No. 292-B of 2017, decided on 30th August, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Statutory ground of delay---Main contention of counsel for accused was that accused was entitled to concession of bail on ground of delay in conclusion of trial---Accused was behind the bars for more than two years---Eleven prosecution witnesses were examined while eight material prosecution witnesses were yet to be examined and there was no likelihood of conclusion of trial in a near future---Delay was mainly caused by prosecution or court itself---Nothing was on record which could suggest that accused was a previous convict punishable with death or imprisonment for life; nor he was hardened, desperate or dangerous criminal or charged for an offence of terrorism punishable with death or imprisonment for life---Gravity of offence and abscondance was alien to statutory right of bail---Accused was entitled to be released on bail on ground of statutory delay as provided in third proviso to S. 497, Cr.P.C.---Bail was granted accordingly.

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

----S. 497(1), third proviso--- Bail--- Statutory delay--- Scope---Section 497(1), third proviso, Cr.P.C. mandated the release of accused of an offence detained for a continuous period exceeding one year or two years, as the case might be, but whose trial for such offence had not been concluded within such period---Release of accused on bail was subject to satisfaction of court that delay in conclusion of trial was not occasioned by any act or omission of the accused or any other person acting on his/her behalf.

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

----S. 497---Bail---Statutory delay---Scope---Bail could not be refused on hyper-technical grounds if case on statutory delay in conclusion of trial was made out.

Farooq Khan Sokari for Petitioner.

Rasheed Khan Dirmakhel, for Respondent.

Shahid Hameed, Additional A.-G. for the State.

2018 P Cr. L J 126

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ

FARID KHAN---Appellant

Versus

The STATE---Respondent

Cr. A. No. 23-B of 2015, decided on 11th April, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 35 & 397---Penal Code (XLV of 1860), Ss. 302(b), 324, 352 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, sentence in case of conviction of several offences at one trial, sentence on offender already sentenced for another offence---Concurrent running of sentences---Scope---Accused was charged for the murder of two persons and FIR was lodged---Police tried to arrest the accused but he made firing on the police party, due to which two police officials got hit and died, thereafter another FIR was lodged---After completion of investigation, in case of first FIR, challan was submitted against the accused before the Trial Court---Trial culminated into conviction of accused and was sentenced to life imprisonment---On completion of investigation, in second FIR, challan was submitted against the accused before the Trial Court---Accused was convicted and sentenced to life imprisonment---Trial court had ordered that the sentences shall run consecutively---Validity---Appeal was not pressed on merits by the accused but requested that the sentence awarded to him be ordered to run concurrently---Section 35(2)(a) Cr.P.C. prohibited the giving of consecutive sentences in one trial beyond the period of fourteen years---Section 397, Cr.P.C. provided that when a person already undergoing a sentence of imprisonment, or imprisonment for life was sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life should commence at the expiration of the imprisonment, or imprisonment for life to which he had been previously sentenced, unless the court directed that the subsequent sentence should run concurrently with such previous sentence---Court of law could not deny the benefit of Ss. 35 & 397, Cr.P.C. to the accused---If concurrent running of sentences was denied to the accused, the same would bring at naught the benefit conferred upon him by the amnesty given by the Government---Construing the beneficial provisions in favour of the accused would clearly meet the ends of justice and interpreting the same to the contrary would certainly defeat the same---Appeals were dismissed, however, the sentences awarded to accused in both the cases would run concurrently.

Shah Hussain v. The State PLD 2009 SC 460; Mst. Shahista Bibi and another v. Superintendent Central Jail, Mach and 2 others PLD 2015 SC 15 and Ali Fouzan v. The State and others 2013 PCr.LJ 652 rel.

Arifullah Khan Awan for Appellant.

Shahid Hameed Qureshi, A.A.-G. along with Shah Hussain Khan for the State.

2018 P Cr. L J 140

[Peshawar]

Before Ishtiaq Ibrahim, J

JALAL SHAH---Petitioner

Versus

NIAZ AKBER and 2 others---Respondents

Criminal Miscellaneous B.A. No. 1413-P of 2017, decided on 26th July, 2017.

(a) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Speedy and fair trial was the Fundamental Right of every accused person---Policy of criminal law was to bring accused person to justice as speedily as possible so that if he was found guilty, he might be punished and if he was found innocent was acquitted and discharged.

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

----S. 497(1)---Bail, grant of---Statutory ground of delay---Scope---Delay in conclusion of trial would enable accused person for his post-arrest bail where he had been detained continuously exceeding two years for an offence punishable with death or imprisonment for life, provided that he in the opinion of the court was not a hardened, desperate, dangerous criminal or was accused of an act of terrorism or previously convicted person for an offence punishable with death---Word "shall" in proviso fourthly of S. 497(1), Cr.P.C. meant that where the statutory period was complete, delay was not on the part of accused and his case did not fall under any of the categories of fourth proviso to S. 497, Cr.P.C., court would have no choice but to release the accused on bail.

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

----Ss. 497 & 512---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Statutory ground of delay---Accused was arrested on 20.04.2015 and statutory period was complete on 20.04.2017 but his trial was not concluded---Majority of adjournments were due to absence of prosecution witnesses and even Presiding Officer had not taken any coercive measures either against process server or prosecution witnesses---Nothing was available on record which could reflect that delay occasioned in trial was either on part of accused or any person acting on his behalf---Argument of counsel for complainant that application for grant of bail on statutory ground was pre-mature as charge had been framed was misconceived because time of detention of accused would be reckoned from the date of his arrest and not from commencement of trial---Killing of a person over dispute on women folk by firing at him was not an act of desperate, hardened or dangerous criminal---Effect of criminal cases registered against accused was not relevant for disposing of bail application---Abscondance of accused pertained to merits of case and did not come under exceptional provisions of fourth proviso of S. 497, subsection (1), Cr.P.C.---Accused was entitled to concession of bail as of right on basis of delay in conclusion of trial---Bail was granted accordingly.

Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353; Moundar and others v. The State PLD 1990 SC 934 and Qurban Ali v. The State 2017 SCMR 279 rel.

Astaghfirullah for Petitioner.

Mian Arshad Jan, A.A.-G. for the State.

Syed Azmat Ali for the Complainant.

2018 P Cr. L J 153

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

SHER AFZAL and others---Petitioners

Versus

The STATE and others---Respondents

Cr. Misc. B.A. No. 160-A of 2017, decided on 17th May, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Prosecution case was that accused-petitioners in furtherance of common intention committed qatl-i-amd of father of complainant---No doubt, the accused-petitioners were directly charged in the FIR by the complainant but at the same time, complainant was not an eye-witness of the occurrence---Report of the occurrence was lodged after the delay of twenty five hours which was based on the information to the complainant by witness---Role of firing was attributed by the said witness to both the accused-petitioners which would be subject to scrutiny at the trial, especially when the postmortem of the deceased had not been conducted---Site plan was not in support of the prosecution case---Nothing incriminating had been recovered from the accused-petitioners---No direct or circumstantial evidence was available on the record connecting the accused-petitioners with the commission of alleged offence---Record showed that there was cross-version of the occurrence lodged by the accused party against the brother of the complainant---Circumstances suggested that case of the accused-petitioners was one of the further inquiry into the guilt as contemplated in S. 497(2), Cr.P.C.---Accused-petitioners were allowed bail in circumstances.

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

----S. 497(2)---Bail---Absconsion of accused---Effect---Mere absconsion of the accused would not be sufficient when otherwise a case for bail in view of the peculiar facts and circumstances was made out.

Mitho Pitafi's case 2009 SCMR 299; Ehsanullah's case 2012 SCMR 1137; Ikramul-Haq's case 2012 SCMR 1273 and Qamar alias Mitho's case PLD 2012 SC 222 rel.

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

----S. 497---Bail---Principle---Observations made in bail order were tentative in nature and would not affect the case during the trial in any manner whatsoever.

Ghulam Mustafa Khan Swati and Saeed Ahmad Shah Mashadi for Petitioners.

Shad Muhammad Khan for Respondents.

2018 P Cr. L J 341

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Ghazanfar Khan, JJ

JAMSHAD KHAN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Writ Petition No. 2699-P of 2017, decided on 24th October, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S. 9---Corruption or corrupt practices---Bail, grant of---Statutory ground of delay---Record showed that there were two hundred and ninety six prosecution witnesses which were to be examined in due course of law---High Court while declining earlier bail application of accused had directed the Trial Court to conclude trial within two months, but record showed that only eight out of two hundred and ninety six prosecution witnesses were examined---Trial was to consume sufficient long time for the evidence, therefore keeping the accused behind the bars for indefinite period would not be in the interest of justice and fair play---Accused was entitled to bail on the ground of statutory delay in conclusion of trial---Constitutional petition was allowed accordingly.

Arshad Hussain Yousafzai for Petitioner.

Muzammil Khan for Respondents.

Umar Farooq (ADPG) for the State.

2018 P Cr. L J 352

[Peshawar (Abbottabad Bench)]

Before Mohammad Ghazanfar Khan and Abdul Shakoor, JJ

MUHAMMAD SHAFIQUE and 12 others---Petitioners

Versus

The STATE and 3 others---Respondents

W.P. No. 593-A of 2017, decided on 5th September, 2017.

Criminal Procedure Code (V of 1898)---

----S. 561-A--- Constitution of Pakistan, Art. 199--- Constitutional petition---Quashing of FIR---Alternate and efficacious remedy---Petitioners were accused facing investigation against whom FIR was registered and it was in progress---Validity---Legal and factual issues raised by petitioners could be taken in first instance before investigating officer and then even before framing of charge by the Trial Court, if at all Challan would be submitted against petitioners as the Trial Court had the power to discharge petitioners---Petitioners had adequate alternate remedy available and it would be appropriate that petitioners should agitate all such legal and factual points before Trial Court---Constitutional petition was dismissed in circumstances.

Khawaja Nazir Ahmed's case AIR 1945 PC 18 and Nasreen Bibi v. Farrukh Shahzad and others Criminal Appeal No. 280 of 2013 rel.

2018 P Cr. L J 370

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ayub Khan and Abdul Shakoor, JJ

Mst. FARHAT AFZA---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

W.P. No. 580-D of 2016, decided on 22nd May, 2017.

Penal Code (XLV of 1860)---

----S. 62---Forfeiture of property---Predecessor-in-interest of petitioner was convicted and sentenced to death in year 1952 and half of his property was forfeited in favour of Provincial Government---Plea raised by petitioner was that provision of S. 62, P.P.C. was duly amended in the year 1921 and property of any convict could not be forfeited---Validity---Provision existed under S. 62, P.P.C. to forfeit property in death cases which was repealed in the year 1921 by Penal Code (Amendment) Act, 1921---Order forfeiting property of predecessor-in-interest of petitioner was without jurisdiction, illegal and not sustainable in law---High Court directed the authorities to release property in favour of petitioner and set aside the order of forfeiture of property---Petition was allowed in circumstances.

Sanaullah Khan Gandapur for Petitioner.

Hashmat ur Rehman, Assistant Attorney-General for Respondent No.1.

Kamran Hayat Miankhel, AAG assisted by Saleem Ullah Khan Ranazai for Respondents Nos. 2 to 5.

2018 P Cr. L J 392

[Peshawar]

Before Waqar Ahmad Seth and Ijaz Anwar, JJ

FIRDOUS AZIZ---Petitioner

Versus

ASIF AZIZ and 3 others---Respondents

Writ Petition No. 2577-P of 2017, decided on 21st September, 2017.

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

----Ss. 22-A, 154 & 156---Penal Code (XLV of 1860), S. 489-F---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of proceedings---Registration of FIR---Petitioner was aggrieved of order passed by Ex-Officio Justice of Peace in exercise of powers under S. 22-A, Cr.P.C. whereby he issued direction to Station House Officer concerned for registration of FIR against petitioner as cognizable offence was committed---Validity---Ex-Officio Justice of Peace passed order in question in accordance with law keeping in view allegations levelled against petitioner which were guiding towards a cognizable offence---Question of applicability of S. 489-F, P.P.C. was controversial, requiring recording of evidence and High Court declined to exercise Constitutional jurisdiction---Police had a statutory duty under S. 154, Cr.P.C. to register FIR regarding commission of any cognizable offence and its purpose was only to set criminal law in motion---Provisions of S. 154, Cr.P.C. were mandatory in nature---When FIR was registered by local police, under S. 156, Cr.P.C., had statutory rights to investigate case---Interference by court with duties of police was not permissible under law---FIR was not an encyclopedia of all relevant facts---Image presented by FIR would be clarified when all incriminating material had brought on record during investigation---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Naseeb Gul v. Amir Jan and another 2013 PCr.LJ 175; Sardar Muhammad Aslam v. SHO 2013 YLR 108 and Iftikhar Akbar v. The State 2008 MLD 159 ref.

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

----S. 561-A---Constitution of Pakistan, Art. 199---Inherent jurisdiction of High Court---Quashing of FIR---Scope---High Court has powers to quash FIR but in exceptional circumstances, i.e., where allegations made in FIR on the face of it do not constitute a cognizable offence, or allegations made in FIR are so illogical on basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against accused or where there is an express legal bar in any of provisions of Cr.P.C. or concerned Act under which criminal proceeding is instituted.

Brig. (Retd.) Imtiaz Ahmad v. The Government of Pakistan 1994 SCMR 2142 and 2008 SCMR 76 rel.

(c) Jurisdiction---

----Civil and criminal---Scope---Mere filing of civil suit is not bar to registration of criminal case if same is made out from facts asserted that a criminal act is committed.

Ghulam Muhammad v. Muzamil Khan and 4 others PLD 1967 SC 317 rel.

2018 P Cr. L J 413

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

RAHMATULLAH---Petitioner

Versus

The STATE---Respondent

Cr. M. B.A. No. 337-D of 2017, decided on 10th November, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 148 & 149---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-D(4)---Arms Act (XX of 1965), S. 15---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, terrorism, possession of explosive substances, arms and ammunition---Bail, grant of---Further inquiry---No incriminating material existed to connect the accused persons with the alleged offence except supplementary statement of a witness under S. 161, Cr.P.C.; wherein he stated that accused persons and co-accused persons were fast friends and there was a general rumor that his son and other companions were involved in terrorist activities and his son left the motorcycle on the spot---Mobile data did not disclose accused persons' contact with terrorists at the time of occurrence---Section 21-D(4) of Anti-Terrorism Act, 1997 was not applicable in circumstances---Challan against accused persons was not submitted despite their arrest for seven months---Case of accused persons fell within the ambit of further inquiry as sufficient incriminating material was not available to connect the accused with commission of alleged offence---Bail was granted accordingly.

Muhammad Sadique v. State PLD 1985 SC 182; Falak Shah v. The State 1979 SCMR 103 and Najeeb Gul v. Khalid Khan 1989 SCMR 899 rel.

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

----S. 497---Bail---Further inquiry---Scope---Where there was no prima facie case against the accused and evidence on record was vague and sketchy, matter could be held to be that of further inquiry.

Muhammad Sadique v. State PLD 1985 SC 182 rel.

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

----S. 497---Bail---Further inquiry---Scope---Bail could be granted by invoking S. 497(2), Cr.P.C. and concept of further inquiry could be pressed into service where prosecution version left much to be inquired.

Falak Shah v. The State 1979 SCMR 103 and Najeeb Gul v. Khalid Khan 1989 SCMR 899 rel.

Saifur Rehman Khan, Muhammad Abid and Farooq Akhtar Khan for Petitioner.

Adnan Ali Khan, A.A.-G. for the State.

2018 P Cr. L J 440

[Peshawar]

Before Rooh-ul-Amin Khan, J

IFTIKHAR AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Misc. Bail Petition No. 754-P of 2017, decided on 12th June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 2(q)---Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Division II, Schedule V---Possession of narcotic drugs---Recovered contraband under the name of "Acetic Anhydride" fell within the ambit of "manufacture drug" as defined under S. 2(q) of Control of Narcotic Substances Act, 1997, as well as notified in the official gazette and Division II, Schedule V, Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001---Possession of recovered chemical "Acetic Anhydride" being a primary substance used for production of heroin was manifest contravention of the provisions of S. 6, Control of Narcotic Substances Act, 1997---Accused was arrested red-handed on the spot and huge quantity of "Acetic Anhydride" was recovered from boot of car which was in his exclusive possession and control---Positive Forensic Science Laboratory report and statements of recovery witness under S. 161, Cr.P.C. had substantiated the version of complainant---Nothing was on record to show any ill-will or enmity of the prosecution witnesses against accused---On tentative assessment of evidence, reasonable grounds existed which prima facie connect accused with commission of offence---Bail was refused accordingly.

Noor Alam Khan for Petitioner.

Moeen ud Din Hamayoun, AAG for the State.

2018 P Cr. L J 467

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

BACHA KHAN---Petitioner

Versus

STATE through A.A.-G. Peshawar High Court Bench Mingora, Swat and another---Respondents

Criminal Misc. B.A. No. 188-M 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---Further inquiry---Present case was that of border line between sub-clause (b) and (c) of S. 9, Control of Narcotic Substances Act, 1997---Punishment was to be awarded for the offence to commensurate with the quantity of recovered contraband, therefore, quantum of punishment would be decided by the Trial Court---Whether accused would be liable to maximum punishment in case of proof of guilt after trial and would fall under the prohibitory clause of S. 497, Cr.P.C. was the question requiring further probe---Bail was granted accordingly.

Abdul Jalal for Petitioner.

Barrister Asad Hameed-ur-Rahman, State counsel.

2018 P Cr. L J 481

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

HABIBULLAH---Petitioner

Versus

QADIR KHAN and 2 others---Respondents

Criminal Bail Petitions Nos. 101-B, 105-B and 122-B of 2017, decided on 26th May, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Accused persons were directly nominated with their respective roles in their respective FIRs by the complainants---Investigation in the case was almost complete and trial was about to commence in the near future---Accused persons remained absconded after the occurrence for a considerable period and after acquittal of co-accused, they had surrendered---Prima facie, it appeared that accused were waiting for the acquittal of co-accused---Accused who absconded after the occurrence for noticeable period would not be invariably entitled to bail only because of co-accused having been acquitted---Alleged offence fell under prohibitory clause of S. 497(1), Cr.P.C.---Medico-legal Report, recovery of empties and longstanding abscondance, prima facie, connected accused with the commission of offence---Bail was refused accordingly.

2016 SCMR 762; 2017 PCr.LJ 10; 2016 YLR 244; 2016 PCr.LJ 1523; 1985 SCMR 382; 2016 MLD 818 and 2014 PCr.LJ 636 ref.

Sardar v. State PLD 1979 Pesh. 16; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Atlas Khan v. Mazamullah Khan and another 1989 PCr.LJ 2044 rel.

Chairman NAB through PGA NAB, Islamabad v. Muhammad Khalid 2016 SCMR 676 distinguished.

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

----S. 497---Bail---Abscondance---Scope---Accused who absconded after the occurrence for noticeable period would not be invariably entitled to bail only because co-accused had been acquitted.

Atlas Khan v. Mazamullah Khan and another 1989 PCr.LJ 2044 rel.

Farooq Khan Sokari, M. Yaqoob Marwat and M. Rasheed Khan Dirma Khel for Petitioner.

Pir Liaqat Ali Shah, Salah-ud-Din Marwat and Inam Ullah Khan Kakki for Respondents.

Shahid Hameed Qureshi, Additional A.-G. for the State.

2018 P Cr. L J 498

[Peshawar (Bannu Bench)]

Before Abdul Shakoor, J

FAWAD KHAN---Petitioner

Versus

JAMSHED KHAN and another---Respondents

Criminal Miscellaneous Bail Application No. 344-B of 2017, decided on 25th September, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324 & 34---Juvenile Justice System Ordinance (XXII of 2000), S. 10 ---Attempt to commit qatl-i-amd, common intention---Bail, refusal of---Juvenile involved in criminal case---Complainant had alleged that both the accused started firing at him with the intention to commit qatl-i-amd---Motive was verbal altercation---Parties were residents of same village and very much known to each other and incident had occurred in the day light---Accused persons were charged by name in promptly lodged FIR---Accused was assigned the role of firing which resulted into causing injuries to the complainant on abdomen, leg, knee, left thigh, forearm such multiple entry wounds supported the version of complainant---Two crime empties were also recovered from the spot by Investigating Officer---Section 10, Juvenile Justice System Ordinance, 2000 did not give concession of bail to a juvenile accused (above fifteen years) in an offence falling within prohibitory clause of S. 497, Cr.P.C.---Tender age could not be used as a license by a juvenile to kill or attempt to kill the innocent people---Some concession could be extended to juvenile during trial but not at bail stage---Bail was refused accordingly.

Farmanullah and another v. The State and another 2005 PCr.LJ 1500 rel.

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

----S. 10---Criminal Procedure Code (V of 1898), S. 497---Bail to a juvenile---Scope---Section 10, Juvenile Justice System Ordinance, 2000 had provided some concession for accused who was under the age of fifteen years, but if he was involved in a case of heinous nature then he might not be released on bail.

Syed Fakhr-ud-Din Shah for Petitioner.

M. Salim Awan for Respondent.

Shahid Hameed Qureshi, Additional A.-G. for the State.

2018 P Cr. L J 512

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

AHMAD SHAH---Petitioner

Versus

AGRICULTURE INSPECTOR SMS PLANT PRODUCTION DEPARTMENT OF AGRICUTLURE DISTRICT MANSEHRA and another---Respondents

Cr. M.Q. No. 22-A of 2017, decided on 13th July, 2017.

Khyber Pakhtunkhwa Fertilizer Control Act (VI of 1999)---

----Ss. 20(a), (b)(c) & 24---Penal Code (XLV of 1860), Ss. 419 & 420---Criminal Procedure Code (V of 1898), S. 561-A---Cheating by personation, cheating and dishonestly inducing delivery of property---Quashment of proceedings---Scope---Agriculture Inspector raided a basement and had recovered fake fertilizer and a case was registered against the petitioner and others and the basement with fertilizer was sealed---Petitioner (landlord of the basement) moved application to Judicial Magistrate for de-sealing of premises and shifting of fertilizer therefrom, which was dismissed---Petitioner had filed revision petition, which was also dismissed---Validity---Record showed that petitioner was not involved in storing, selling or manufacturing of fake fertilizer nor he had been made accused in the present case---No previous history of petitioner's involvement and indulgence in such like matters was available---Record revealed that main accused had been released on bail and the complainant had not sought for the cancellation of his bail---Fertilizer Inspector could either store the recovered fertilizer in the same building or place or to remove it to any other place---Petitioner was not involved in any manner with the fake fertilizer and he had only rented out the basement to the main accused in the case---To keep the seized fertilizer for indefinite period in the said premises was highly unjustified---Fertilizer Inspector had deprived the petitioner from lawful use of his property as he had no power and authority to seal the premises under the relevant law---Circumstances established that findings rendered by both the courts below were not based on proper appreciation of material available on record of the case, thus warranted interference---Constitutional petition was allowed accordingly.

Ghulam Mustafa Khan Swati for Petitioner.

Yasir Zahoor Abbasi, Assistant Advocate-General for Respondents.

2018 P Cr. L J 553

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

KALIMULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 27-B of 2017, decided on 9th June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 172(2)---Qanun-e-Shahadat (10 of 1984), Art. 157---Reliance on police diary and right of adverse party to refresh memory---Scope---Prosecution produced Investigating Officer during trial of the case---During the cross-examination, questions regarding mentioning of facts of receiving reference chit in the case diary and writing all the case diaries on the spot or in police station were put to said witness---Complainant objected the said questions, which objection was sustained by the Trial Court---Validity---Investigating Officer of the case was not a formal witness, as he was a person who had collected the evidence and had placed the same before the court---Investigating Officer of the case could refresh his memory before recording his statement and then it was the inalienable right of the accused to cross-examine him to contradict or corroborate him as the case might be---In the present case, nothing was on record to show that Investigating Officer was examined without consultation of police file---Once the Investigating Officer consulted police file then he was amenable to cross-examination---Once a witness had refreshed his memory, defence would be entitled to see the particular portion of case diaries and to ask questions with regard to the investigation of the case to arrive at a just and proper decision of the case; otherwise court could look into the diaries and the deposition of witness recorded at the trial and would form its own opinion without referring the daily diary in its order or judgment as the case may be---Revision petition was disposed of with the order by the High Court that Investigating Officer be re-summoned as witness and defence be allowed to cross-examine him with regard to the investigation of the case.

Abdul Sattar v. The State through Advocate-General N.-W.F.P. 2008 SCMR 684 and Shad Muhammad Khan v. The State and another 2013 YLR 71 rel.

M. Yaqoob Khan Marwat for Petitioner.

Hujjat Ullah Khan for Respondents.

Shahid Hameed Qureshi, Additional A.-G. for the State.

2018 P Cr. L J 566

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

AITBAR SHAH and 4 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 540-P and Murder Reference No. 14-P of 2016, decided on 2nd October, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Contents of judgment---Prosecution case was that the accused party while armed with deadly weapons assaulted on the complainant party, made firing, resulting in the death of two persons while the complainant and prosecution witnesses escaped unhurt---After submission of challan, Trial Court framed formal charge against the accused persons under Ss. 302, 324, 148 & 149, P.P.C., to which accused-appellants pleaded not guilty and claimed trial---Prosecution examined as many as twelve witnesses and closed its evidence---Statements of the accused-appellants were recorded under S. 342, Cr.P.C.; accused persons though, denied allegations of the prosecution against them, but declined to either be examined on oath or produce defence evidence---Accused-appellants were convicted and sentenced by the Trial Court, without giving any findings in respect of charge against them under S. 148, P.P.C. which was a legal infirmity---Effect---Impugned judgment failed to meet the mandatory requirements of S. 367, Cr.P.C. owing to omission on the part of the Trial Court to record findings on the charge under S. 148, P.P.C.---Record transpired that accused-appellants were distinctly and separately charged under S. 148, P.P.C. for "rioting" while armed with deadly weapons, carrying the penalty of imprisonment up-to three years or with fine or both---Trial Court in contrary to the mandatory provision of S. 367, P.P.C., failed to even advert to the said charge, which created scope for remand of the case for rewriting the judgment---High Court observed that Trial Courts were to exercise extra care and caution and take cognizance of all relevant facts and legal provisions applicable to the case while deciding specially matters involving capital punishment---Appeal was partly accepted by setting aside the conviction and sentences awarded to accused persons and the case was remanded to the Trial Court for decision afresh/re-writing of judgment after providing opportunity of hearing to both the parties.

Barrister Zahoor-ul-Haq and Abdul Latif Afridi for Appellants.

Mian Arshad Jan, AAG assisted by Mian Faheem Akbar for the State.

Sahibzada Asadullah for the Complainant.

2018 P Cr. L J 595

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

HIKMATULLAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.C.A. No. 46-B of 2017, decided on 24th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Bail, recalling of---Accused was nominated in the crime report with the allegation of attempting to commit qatl-i-amd of the complainant by firing---Record showed that first bail application moved by the accused/respondent before High Court had been dismissed on 5.7.2016 with direction to the Trial Court, to conclude trial within five months---Accused, however, was allowed bail by the Trial Court on 5.7.2017, on the ground that his trial could not be concluded within a period of five months as directed by the High Court---Non-compliance of the directions issued to the Trial Court to conclude the trial expeditiously or within specific period could not be considered as a valid ground for the grant of bail to the accused, particularly, when his petition for bail had already been dismissed on merits by High Court---No fresh ground was shown by the accused for considering his request for the grant of bail---Impugned order of the Trial Court, was set aside and concession of bail extended to accused stood recalled, in circumstances.

Nasir Ahmad v. The State PLD 2016 SC 11 rel.

Salahudin Khan Marwat for Petitioner.

Ashraf Khan Marwat for Respondents.

Shahid Hameed, Additional A.-G. for the State.

2018 P Cr. L J 604

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Syed ASGHAR SHAH and 2 others---Petitioners

Versus

The STATE---Respondent

Cr. R. No. 27-A of 2015, decided on 12th July, 2017.

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

----Ss. 561-A & 439---Revision---Inherent jurisdiction of High Court---Scope---Revision petition was not maintainable before the High Court, however the Court had ample power to convert revision petition into petition under S. 561-A, Cr.P.C. for its disposal on merits in the larger interest of justice.

Muhammad Akhtar v. The State 1993 MLD 370 rel.

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

----Ss. 514 & 561-A---Forfeiture of bond---Issuing of show-cause notice to sureties---Scope---Case under Ss. 365-B & 34, P.P.C. was registered by a person regarding abduction of his wife---Said abductee, after recovery, in her statement recorded under S. 164, Cr.P.C. showed her willingness to go with her cousin/petitioner---Judicial Magistrate allowed her to go with one petitioner subject to his furnishing of personal bond in the sum of rupees five lac to ensure safety and security of abductee and to produce her before any court as and when required---Petitioners submitted requisite surety bonds in the court and she was handed over to one petitioner---Subsequently, the lady was murdered by her husband and case was registered against him---Judicial Magistrate forfeited the bonds submitted by the petitioners and show cause notices were served upon them---Petitioners submitted their written reply and consequently, the petitioners were directed to deposit one third portion of the amount of surety bonds---Petitioners filed a revision petition against the said order, which was dismissed---Validity---Present criminal revision petition was converted into petition under S. 561-A, Cr.P.C. by the High Court for its disposal on merit---Record showed that petitioners stood sureties for safety and security of the deceased lady and in that respect they furnished personal surety bonds before the court; however, they failed to discharge their legal obligation for which they stood sureties---If there were any issues regarding her safety and security, then they should have applied to the court concerned for discharge of their surety bond---Replies of petitioners to the show-cause notices showed that they had allowed deceased lady to go to her home where she was murdered by her husband--- Circumstances suggested that petitioners failed in performance of their legal obligations/duties which they willingly accepted by submitting surety bonds; in such circumstances, petitioners could not be absolved from their responsibilities as due to their irresponsible attitude and uncalled for conduct, an innocent human being lost her life---Findings rendered by both the courts below were based on proper appreciation of material available on record of the case, and the law applicable thereto, thus warranted no interference---Petition was dismissed accordingly.

Sajjad Afzal Khan for Petitioners.

Yasir Zahoor Abbasi, Assistant Advocate-General for the State.

2018 P Cr. L J 645

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

MAZHAR---Petitioner

Versus

The STATE and another---Respondents

Criminal M/B. No. 661-A of 2017, decided on 6th November, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Further inquiry---Cross case---Categories in cases of bail---Scope---Contention of accused was that as the matter was of cross version, he was entitled to concession of bail---Validity---Every cross version did not necessarily make the guilt of accused for further inquiry---Court in such a case, could resort to tentative assessment of material produced to form an opinion as to whether a case of further inquiry was made out or not---Three categories of cross cases: First was where out of the two parties , prima facie there was a case against one party to have initiated aggression on the other party and the later had acted in self-defence, the party that acted in self-defence would be entitled to bail; second would be wherein two opposite parties had, by chance, came across and out of fear had assaulted each other, in that case, both parties would be entitled to bail on the assumption that they had acted in self-defence and third would be in where two opposite parties had indulged in the fight at the spur of the moment, in such a case, unless evidence was recorded, it was yet to be determined as to which party had committed aggression, hence both the parties were entitled to concession of bail---Court, however, was not precluded from tentatively assessing the guilt of each accused even in cross case while granting bail to one party and refusing to the other party---Merely because there were cross FIRs or cross cases against each other, could not be a ground for grant of bail---Observations by High Court while disposing of bail applications were not to be considered during the trial of the accused.

Manawar Din v. Gul Zaman and others PLD 1977 Pesh. 59; Arif Din v. Amil Khan and another 2005 SCMR 1402 and Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1845 ref.

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

----S. 497---Bail---Entitlement---Cross versions---Scope---Every cross version did not necessarily make the guilt of accused for further inquiry and the Court in such a case could resort to tentative assessment of material produced to form an opinion as to a case of further inquiry was made out or not---Court was not precluded from tentatively assessing the guilt of each accused even in cross case while granting bail to one party and refusing to the other---Merely because there were cross FIRs or cross cases, could not be a ground for grant of bail.

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

----S. 497---Bail---Cross case---Categories---Three categories of cross cases: First was where out of the two parties, prima facie there was a case against one party to have initiated aggression on the other party and the later had acted in self defence, the party that acted in self defence would be entitled to bail; second was wherein two opposite parties had, by chance, came across and out of fear had assaulted each other, in that case, both parties would be entitled to bail on the assumption that they had acted in self defence and third would where two opposite parties had indulged in the fight at the spur of the moment, in that case, unless evidence was recorded, it was yet to be determined as to which party had committed aggression, hence both the parties were entitled to concession of bail.

Waqar Ahmed Khan Jehangiri for Petitioner.

Sardar Muhammad Asif, A.A.-G. for the State.

Shad Muhammad Khan for the Complainant.

2018 P Cr. L J 716

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

IMRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 196-P and 197-P of 2014, decided on 9th November, 2017.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Testimony of injured witness---Scope---Complainant in the present case was also injured---Mere presence of injuries on person of complainant would neither make him a truthful witness nor his testimony was sufficient to result in conviction of accused, unless his deposition was consistent with and corroborated by other ocular and circumstantial evidence.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the complainant along with his cousin and other relatives proceeded towards the place of work---Complainant party when reached at the place of occurrence, accused and co-accused persons armed with daggers were present there and attacked upon the complainant party, due to which, complainant and his cousin sustained injuries---Cousin of complainant succumbed to the injuries on way to the hospital---Motive for the occurrence was cited as an altercation between the accused and victims one day prior to the occurrence---Complainant had thumb impressed the murasila, drafted on his report, and eyewitness also thumb impressed the murasila---Complainant deposed before the court that he had signed his report/murasila in english, whereas eyewitness stated that he did not remember as to whether his thumb impression was obtained upon the report or not---Complainant further stated that two witnesses had signed the murasila, but the murasila borne the thumb impression of only one eye-witness, besides thumb impression of the complainant---All the four accused named in the FIR, being members of the same family were charged for causing dagger blows to the deceased and the complainant, but complainant improved his statement by saying that he was attacked and assaulted by two accused, whereas deceased was hit by other two accused---Prosecution witness, claimed to be eyewitness, did not receive a single injury despite alleged sudden attack by four accused having daggers in their possession---In the site plan, deceased, complainant and eye-witnesses were shown proceeding from western side towards place of work situated on the eastern side, but neither houses of the complainant party had been shown on the western side nor destination of complainant was shown on the eastern side---Investigating Officer deposed that the site plan was prepared on the pointation of the eye-witness, but the eye-witness categorically stated before the court that the site plan was not prepared at his instance---Site plan was admittedly, not prepared on the pointation of complainant, thus the site plan was not corroborated through the testimony of the eye-witnesses---Both the deceased and injured/complainant had been shown side by side with each other in the site plan, but recovery witness stated before the court that the blood stained sand was recovered from six paces from each other---Record showed that deceased received seven stab wounds and the injured-complainant received two stab wounds, but no resistance either by deceased or by the injured-complainant was made---No attempt was made by the complainant party to run away from the scene of occurrence despite having seen the accused from a distance of 5/6 paces---First Information Report did not show that eye-witnesses reacted/resisted, but they improved their statements in that regard by deposing that they had tried to rescue the deceased and injured-complainant---Eye-witnesses had stated that they tried to stop the accused from fatal dagger attacks, but they failed as the situation was out of their control---Testimony of eye-witnesses remained inconsistent in that respect---Postmortem report of the deceased appeared in conflict with the FIR, by showing time between injury and death as instantaneous---Complainant had mentioned in the FIR that deceased succumbed to the injuries on his way to the hospital---Statement of Medical Officer showed that the possibility of injuries on both the deceased and the injured were caused by axe, which made the FIR doubtful as showing all the injuries caused by dagger---Circumstances established that there were discrepancies, contradictions and improvements in the prosecution case, which created doubts in the case, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of about one hour and ten minutes in lodging FIR---Effect---Matter was reported to the police after delay of one hour and ten minutes---Police station was situated on main road---Delay in lodging FIR, would certainly raise question about possibility of prior consultation and deliberation before lodging the FIR.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Testimony of closely related witnesses---Reliance---Scope---Both the eyewitnesses mentioned in the FIR were, admittedly, closely related to the deceased and the injured complainant, who were also related inter se---Not only the injured complainant but also both the eyewitnesses mentioned in the FIR were interested witnesses, being closely related to each other, thus not reliable.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive, proof of---Motive for the occurrence was mentioned an altercation with the accused one day prior to the occurrence---Nothing was on record regarding altercation between the accused and unspecified member of the complainant party---Alleged motive was negated by the complainant by saying that there was no quarrel at all with the accused party prior to the occurrence of the present case---Reason for previous altercation remained a matter of speculation, as such, the alleged motive was not proved.

(f) Criminal trial---

----Motive---Scope---Motive was not an essential pre-requisite for proof of an offence---If motive was alleged in a case, it would become incumbent upon the prosecution to prove the same---Lack of proof could cause considerable damage to the prosecution case.

(g) Criminal trial---

----Absconsion---Scope---Absconsion of accused without being supported by corroborated ocular and circumstantial evidence, could not bring home charge against the accused.

Ishfaq Ahmad Afridi for Appellant.

Syed Sikandar Hayat Shah, A.A.-G. assisted by Shahzad Gul Khattak Counsel for the Complainant.

2018 P Cr. L J 757

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SADDAR KHAN and another---Appellants

Versus

JAN SAID and another---Respondents

Criminal Appeal No. 289-P of 2013, decided on 6th September, 2017.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons made firing at complainant and his father, as a result of which, father of complainant was hit and injured, while complainant escaped unhurt---Injured was taken to the hospital where he succumbed to the injuries---Ocular account of the occurrence had been furnished by the complainant, who happened to be son of the deceased---Record showed that evidence furnished by the complainant had no corroboration from the circumstances of the case---Contents of FIR showed that both complainant and deceased were returning home after purchasing some commodities from bazaar---Case file did not show any convincing evidence, which could corroborate the version given by the complainant that he had either gone with his father to bazaar or was returning with him when the occurrence took place---None of the purchased domestic commodities was produced before the Investigating Officer---Occurrence had taken place at about 5.25 p.m. and the distance in between the complainant and both the accused was seventy three paces as per site plan---Identification of accused by the complainant from such a distance in the month of January at 5.25 p.m. could not be accepted as not only at that time sunlight was decreased but due to long distance, it would not be possible for the viewer to properly visualized the occurrence---Complainant had deposed that he had lifted his father and taken him to the hospital---Medical evidence showed that there were multiple injuries on the body of the deceased and blood was oozing from the wounds---Hands and clothes of the complainant in such a situation would have been besmeared with blood, but they were not so---Attending circumstances of the case created doubt about the presence of the complainant at the time of occurrence---Medical Officer deposed that the deceased was brought to the hospital by the police, which aspect of the case also confirmed that the complainant was not present on the crime venue when the occurrence had taken place---Complainant did not call anyone of the inmates of his house so as to apprise him about the occurrence despite the fact that his father was fired at just in front of his house nor anyone of the inmates came out of the house to know about the firing---If the complainant was present on the spot at the time of occurrence, he would have made a call to attract the inmates of his house to inform them about the occurrence---Circumstances established that prosecution had not proved its case against the accused beyond any reasonable doubt, benefit of which, would resolve in favour of accused---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Solitary statement of complainant/eye-witness---Evidentiary value---Conviction could be recorded on the testimony furnished by solitary and related eye-witness, provided same was sufficiently corroborated by circumstantial aspects of the case.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---Motive in the present case was blood feud between the parties as alleged by the prosecution, but the same had not been proved---Defence had taken the plea that the accused were falsely implicated in the case as there was money dispute between the parties---Said factum of dispute between the parties regarding money had been admitted by the Investigating Officer before the court---Motive was not proved in circumstances.

(d) Criminal trial---

----Motive---Not proved---Effect---Proving motive was not necessary to bring home guilt to the accused as crimes were often committed without any motive---Once a motive was alleged in the FIR, then its non-establishment became fatal for the prosecution.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Kalashnikovs recovered from the possession of accused persons did not match with crime empties---Recovered Kalashnikovs were kept unsealed till their examination on the following day by the armourer---No credence could be attached to the recovered Kalashnikovs, in circumstances.

Jalal-ud-din Akbar-e-Azam Khan Gara for Appellants.

Bashir Ahmad Khan and Syed Abdul Fayaz for the Complainant.

Mian Arshad Jan, A.A.-G. for the State.

2018 P Cr. L J 766

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Abdul Shakoor, JJ

JAWAD-UL-HAQ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 281-B of 2016, decided on 7th November, 2017.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of his mother and her paramour, which were found in compromising position---Motive for the offence as stated by the complainant was that the accused on seeing both the deceased in compromising position, killed them---Contents of the FIR showed that complainant and other inmates of the house were eyewitnesses of the occurrence, but in cross-examination, the complainant had admitted that he had not seen the accused at the time of firing---Complainant admitted that he was not eyewitness of the occurrence---Circumstances established that prosecution had failed to bring home the guilt of accused through cogent and confidence inspiring evidence beyond shadow of doubt, benefit of which, would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---Many circumstances creating doubt in the prosecution case were not required for giving benefit of doubt---Single circumstance creating doubt in the case would be enough to acquit the accused.

2009 SCMR 230 and Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Motive for the occurrence was that the accused on seeing his mother and her paramour in compromising position, killed them---Motive advanced by the prosecution remained unproved---No evidence had been led to prove as to where and in whose presence the deceased were present in compromising position as alleged by the complainant in his report---Circumstances established that prosecution had failed to prove the motive.

(d) Criminal trial---

----Witness---Closely related to victim---Statement of such solitary witness---Scope---Conviction could be recorded on the basis of solitary statement of witness, having close relation with the deceased or victim provided his statement was trustworthy, confidence inspiring and corroborated by strong circumstances of the case.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of different articles---Reliance---Record showed that blood from the spot was recovered---Last worn garments of the deceased, positive Serologist Report and recovery of empties from the spot were effected---No direct evidence was available on the record---In the absence of direct evidence, said recoveries would not be sufficient to sustain conviction of accused in capital charge---Such recoveries were considered as corroborative piece of evidence, which were always taken into consideration along with direct evidence and not in isolation.

Muhammad Rasheed Khan Dirma Khel for Appellant.

Shahid Hameed Qureshi, Additional A.-G. for the State.

2018 P Cr. L J 790

[Peshawar]

Before Ishtiaq Ibrahim, J

Arbab TEHSINULLAH---Petitioner

Versus

RIAZ and others---Respondents

Criminal Revision No. 19-P of 2017, decided on 28th July, 2017.

Criminal Procedure Code (V of 1898)---

----S. 517---Cancellation of superdari---Respondents were charged under Ss. 302 & 34, Penal Code, 1860---During the investigation, the Investigating Officer took into custody the household articles/items of the respondents and handed over the same to the petitioner after preparation of a superdagi-nama---Respondents were convicted by the Trial Court but acquitted in appeal---Respondents filed application under S. 517, Cr.P.C. before the Trial Court for return of the articles, which was accepted---Validity---Articles in question were taken into possession on 8.12.1991 and were allegedly handed over to the petitioner by the Investigating Officer which he had denied throughout---Said articles were neither produced before the court during trial nor exhibited---Similarly, the same were neither used in the commission of offence nor any offence appeared to have been committed regarding the said articles---Memo. of the articles was exhibited during the trial but at that point of time, they did not raise any claim for the return of the said articles---Articles in question allegedly were taken into possession on the second day of the occurrence; which showed that those were taken into possession prior to initiation of the proceedings under Ss. 87/88, Cr.P.C., which related to the police and the petitioner had nothing to do with the said proceedings---Respondents were acquitted on 26.11.2002 and they submitted application on 23.5.2014 after about twelve years---No plausible reason had been advanced by the respondents in their petition before the Trial Court nor had satisfied the Court for such a long delay in asking for the return of said articles---No doubt, there was no statutory period of limitation for filing application under S. 517, Cr.P.C. but it must be within reasonable time or if not there must be some reasonable explanation for it which was not available in the present case---Revision petition was allowed, in such circumstances, by setting aside the order of Trial Court, however, the respondents were at liberty to agitate the matter before the civil court, if so advised.

Bhimji Ramji Gujrathi v. Emperor AIR 1914 Nagpur and Syed Bahadur Ali Shah v. Muhammad Anwar and another PLD 1959 Lah. 151 rel.

Saifullah Khalil for Petitioner.

Mian Arshad Jan, A.A.-G. for the State.

Saadatullah Khan for Respondents.

2018 P Cr. L J 826

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ayub Khan and Shakeel Ahmad, JJ

MUHAMMAD IRFAN---Petitioner

Versus

D.P.O. and others---Respondents

W.P. No. 55-D of 2017 with C.M. No. 65-D of 2017, decided on 3rd October, 2017.

(a) Khyber Pakhtunkhwa Prevention of Gambling Ordinance (V of 1978)---

----Ss. 5, 6 & 8 Criminal Procedure Code (V of 1898), Ss. 561 A & 103 Gaming, power to enter and search---Quashment of FIR Police raided the Baithak of a person and found the petitioner and co-accused busy in gambling there---Police arrested them and recovered the gambling amount---Petitioner contended that under S. 8 of Khyber Pakhtunkhwa Prevention of Gambling Ordinance, 1978, the SHO could not carry out search of any place and register the case about which he had reason to believe that it was being used as common gaming house---Action taken by SHO in such circumstances was illegal, without lawful authority and without jurisdiction---Validity---Under the provisions of S.103, Cr.P.C., Police Officer was competent to make search of the premises in connection with the offence reported to him---Khyber Pakhtunkhwa Prevention of Gambling Ordinance, 1978 being a special law, would override the provisions of Cr.P.C. which was a general law; Ordinance provided particular authorities, which only were competent to carry out a search in order to find out any place or premises, which was being used as a common gaming house---Under S. 8 of the Ordinance, Magistrate First Class could supervise the raid carried out in such like circumstances---Raid, in the present case, was conducted by SHO in the absence of Magistrate---Procedure adopted and raid conducted by the SHO was entirely against the provisions of S. 8 of the Ordinance, and was illegal, without lawful authority and without jurisdiction---Constitutional petition was accepted accordingly.

(b) Administration of justice---

If an action was required to be taken in a particular manner, same could be taken in that way only.

Abdur Rauf and 8 others v. The State 1990 PCr.LJ 1694 rel.

Ghulam Muhammad Sappal for Petitioner.

Kamran Hayat Khan Miankhel, A.A.-G. for Respondents.

2018 P Cr. L J 879

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ayub Khan, J

AZAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal M. Q. No. 13-D of 2017, decided on 11th July, 2017.

Criminal Procedure Code (V of 1898)

Ss. 561 A & 344-A Penal Code (XLV of 1860), S. 381-A High Court (Lahore) Rules and Orders, Chapter 1.D, Para 15---Theft of a car or motor vehicle--- Imposition of fine--- Quashing of proceedings Petitioner was facing trial before the Judicial Magistrate under S. 381-A, P.P.C.; non-bailable warrants of arrest were issued against him, against which he filed revision petitioner, which was accepted on cost of Rs. 5,000/- to be paid to the complainant under S. 344-A, Cr.P.C. read with chapter 1.D Para-15 of High Court (Lahore) Rules and Orders---Validity---Chapter 1.D Para-15 of High Court (Lahore) Rules and Orders related to the cost to be imposed on adjournment of the case---In the present case, cost was not imposed because of any adjournment but due to the conduct of the petitioner before the Trial Court---Circumstances established that revisional court failed to comprehend the meaning and spirit of relevant provisions of law and wrongly imposed the cost---Revision petition was accepted by setting aside the impugned judgment to the extent of imposition of cost.

Gul Tiaz Khan for Petitioner.

Adnan Ali Khan, Assistant A.-G. for the State.

Shaukat Ullah Khan Bhittani for Respondent No.2.

2018 P Cr. L J 889

[Peshawar (D.I. Khan Bench)]

Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ

NAZAK---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 35-D of 2016 with Murder Reference No. 5-D of 2016, decided on 5th April, 2017.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss. 512 & 353---Qanun-e-Shahadat (10 of 1984), Art. 47---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Transposition of statement in subsequent trial---Effect---Accused was charged for the murder of brother of the complainant---Record showed that complainant had lodged the report, not naming any person as witness to the incident, but during the course of investigation one person was examined---After the occurrence, accused absconded and statement of complainant was recorded under S. 512, Cr.P.C.---After arrest of the accused, supplementary challan was submitted and charge was framed---Complainant appeared before the Trial Court and was brought to the dock by the prosecution, but was abandoned being won over---Record transpired that Trial Court had relied upon the statement of complainant recorded during proceedings under S. 512, Cr.P.C., despite the fact that complainant was present before the court---Statement of complainant recorded under S. 512 Cr.P.C. could not be transposed because of the reason that it did not qualify any of the conditions provided by Art. 47 of the Qanun-e-Shahadat, 1984---Same was also in contravention of S. 353, Cr.P.C., wherein it was embedded that evidence was to be recorded in presence of accused---Cross-examination was indefeasible right of the accused, which could not be taken away except in exceptional circumstances---Record revealed that complainant was physically present before the Trial Court instead of abandoning him, the prosecution could have examined him and would have declared him hostile in case he was not supporting the charge or case of prosecution---Complainant had alleged that other people who were present at the Adda had seen the occurrence, but no one had been brought before the court---Prosecution had withheld the evidence of that witness, who was produced during investigation, thus adverse inference would be drawn that had said witness been produced, he would have not supported the prosecution version---Circumstances established that the alleged eyewitnesses had not been produced being abandoned, which had given a serious blow to the prosecution case---No ocular account or circumstantial chain was found to connect the accused with the commission of offence---Appeal was allowed and accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

Braj Ballabh v. Akhony AIR 1926 Cal. 705 rel.

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

----S. 512---Transposing of statement---Scope---Statement of witness recorded during earlier trial could not be transposed in the event of presence of that witness before the court during the subsequent trial.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-recovery of weapon, but empty---Reliance---Scope---Record showed that one crime empty of 30-bore was recovered from the spot---Said recovery was of no use to the prosecution because no weapon of offence had been recovered.

(d) Criminal trial---

----Absconsion---Corroborative evidence---Scope---High Court observed that people absconded not because of being guilty, but because of fear and torture of the police---Absconsion was not a substantive piece of evidence, but was a corroborative evidence---Abscondence could neither cure the inherent defect of the ocular account nor by itself was sufficient to sustain conviction.

Islam Badshah and 2 others v. The State PLD 1993 Pesh. 7; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 and Murad Khan and another v. The State 2003 PCr.LJ 1295 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---If any reasonable doubt arose in the prosecution case, the benefit of the same would be extended to the accused not as a grace or concession, but as a matter of right.

(f) Criminal trial---

----Benefit of doubt---Principle---Any reasonable doubt in the prosecution evidence, pricking the judicious mind, was sufficient for acquittal of the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram's case 2009 SCMR 230 rel.

Abdul Latif Khan Baloch for Appellant.

Kamran Hayat Miankhel, A.A.-G. for the State.

Saleemullah Khan Ranazai for the Complainant.

2018 P Cr. L J 922

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MEHBOOBULLAH alias MAGHORAY---Appellant

Versus

The STATE through Advocate-General, Khyber Pakthunkhwa and another---Respondents

Criminal Appeal No. 84-P of 2014, decided on 29th September, 2017.

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

----Ss. 302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with absconding accused duly armed with lethal weapons, fired at complainant party, which hit the son of complainant and he died on the spot, while the complainant and his nephew escaped unhurt---Ocular account was furnished by the complainant and his nephew---Said witnesses deposed that when they reached at the spot, they were fired at by the accused and absconding accused, which hit the son of complainant and he died on the spot while they escaped unhurt---Escaping unhurt from the volleys of Kalashnikov fired from a distance of 10 to 30 paces excluded the presence of both the eyewitness on the spot at the time of occurrence---Medical evidence showed that deceased had sustained five entry and three superficial wounds on different parts of his body---Deceased had suffered multiple injuries but the Investigating Officer had collected forty one empties from the crime spot---Site plan showed that the deceased and both the eye-witnesses were in close proximity, therefore, there was no chance for them to escape unhurt particularly when they were visible to the accused---Site plan had shown the accused towards the southern side of the deceased and thus by that way right side of the deceased was exposed to him---Medical evidence showed that deceased had suffered four entry wounds on left side of his body, which aspect of the case falsified the ocular account about firing at the deceased by the accused---Medical evidence and site plan, being circumstantial evidence, had falsified the ocular evidence furnished by both the eyewitnesses about the accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Recovery of crime empties---Reliance---Record showed that forty one crime empties were recovered from the spot, but there was no Forensic Science Laboratory Report to show as to whether the same were fired from two weapons as alleged---Prosecution had charged two persons for firing, therefore, the Investigating Officer was supposed to get a laboratory report to show that more than one weapons were used in the offence---Getting no such report from the Forensic Science Laboratory had caused colossal damage to the prosecution case.

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

----Ss. 302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Motive---Scope---Motive for the offence was stated to be previous blood feud, but said motive did not relate to the accused---Complainant in his cross-examination had admitted that the accused had no enmity with them---In absence of any enmity and motive of the accused with the deceased, his firing at the victim as alleged did not appeal to a prudent mind.

(d) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to prove its case beyond all reasonable doubts---Slightest doubt arising in the prosecution case was sufficient to record acquittal of the accused.

(e) Criminal trial---

----Absconsion---Scope---Abscondance of the accused alone was not enough to hold him guilty of offence unless charge against him was established through concrete evidence.

Barrister Zahurul Haq and Altaf Khan for Appellant.

Waqar Ahmad Khan, A.A.-G. for the State.

Malik Danial Khan and Asad Yousafzai for the Complainant.

2018 P Cr. L J 947

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim Khan, JJ

TARIQ SHAH---Petitioner

Versus

PROVINCIAL POLICE OFFICER KHYBER PAKHTUNKHWA PESHAWAR and 4 others---Respondents

Writ Petition No. 624-M of 2014, decided on 2nd October, 2017.

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

----S. 11-EE---Inclusion of name of petitioner in the notification issued under S. 11-EE of Anti-Terrorism Act, 1997---Remedy---Procedure---Petitioner was required to prefer appeal to the Provincial Government within thirty days of the impugned notification---Alternate remedy had been provided to the petitioner---Provincial Government was bound to provide an opportunity of being heard to the petitioner and decide his/her appeal within thirty days---Appeals filed by the petitioner being pending before the Provincial Secretary (Home and Tribal Affairs) was to be decided within thirty days from the date of receipt of the order---Petitioner was directed by the High Court to appear before the Provincial Secretary (Home and Tribal Affairs)---If the petitioner had not preferred appeal within stipulated period or his appeal had been misplaced, the constitutional petition of the petitioner was to be treated as appeal for the purpose---Additional Registrar of High Court was directed to transmit entire record of present constitutional petition to the department for doing the needful---Constitutional petitions were disposed of accordingly.

Syed Fayaz Muhammad Qazi for Petitioner.

Hussain Ali, Deputy Attorney-General and Rafiq Ahmad, Assistant Advocate-General for Respondents.

2018 P Cr. L J 964

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

AMJAD PERVEZ---Petitioner

Versus

KHYBER PAKHTUNKHWA EHTESAB COMMISSION through Director-General and 7 others---Respondents

Writ Petition No. 2872-P of 2016 with I.R., decided on 6th February, 2018.

Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014)---

----Ss. 13(b) & 35---National Accountability Ordinance (XVIII of 1999), S. 18(c)---Call up notice---Ehtesab Commission---Jurisdiction---Petitioner assailed call up notice issued to him by Ehtesab Commission---Validity---No inquiry or investigation was pending before National Accountability Bureau, therefore, provision of S. 35(3) & (4) of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, had no bearing on inquiry initiated by Ehtesab Commission against petitioner---Khyber Pakhtunkhwa Ehtesab Commission was not restricted by any provision of law either by National Accountability Ordinance, 1999, or Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, to inquire or investigate matter which was not pending before any Federal Agency---In case of inquiry by both Federal and Provincial Agencies, at the same time, the provisions of S. 35(3) of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, would come into play---Exclusive jurisdiction was conferred under S. 35(1) of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, upon Director General, to order an inquiry or investigation into any incident or an act or omission of a person or accused that reasonably appeared to constitute an offence under Khyber Pakhtunkhwa Ehtesab Commission Act, 2014--- Constitutional Petition was dismissed in circumstances.

Qaisar Ali and Ghulam Nabi for Petitioner.

Zahid Aman, D.P.-G. for Respondents.

2018 P Cr. L J 974

[Peshawar]

Before Rooh-ul-Amin Khan, J

Syed NAUMAN BACHA and another---Petitioners

Versus

MUHAMMAD QASIM BACHA and another---Respondents

Criminal Miscellaneous B.A. No. 228-P of 2018, decided on 23rd February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Juvenile Justice System Ordinance (XXII of 2000), Ss.10 & 12---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Juvenile accused---Entitlement for bail on statutory ground---Scope---Statutory period under S.10(7) of the Juvenile Justice System Ordinance, 2000, was one year in case juvenile was charged with an offence punishable with death or punishable with life imprisonment---Accused persons being juvenile, could not be awarded death penalty, but having been charged for an offence punishable with death the statutory period, as provided under S.10(7)(a) of Juvenile Justice System Ordinance, 2000 would be taken into consideration, which was one year---Accused were behind the bars for the period of more than two years---Challan against accused had been submitted after a period of more than seven months, followed by framing of the charge---Major portion of the prosecution evidence, though had been recorded, but material evidence i.e., the statements of the eye-witnesses and the Investigating Officer, were yet to be recorded, which could cause further delay---Non-appearance of the prosecution witnesses had caused delay in conclusion of trial---Accused persons, in circumstances, were entitled to the concession of bail on statutory ground of delay of more than one year---Accused, were admitted to bail, in circumstances.

Shabir Hussain Gigyani for Petitioners.

Ms. Mamrez Gul for the State.

Maqsood for Respondent.

2018 P Cr. L J 990

[Peshawar]

Before Syed Afsar Shah, J

SHAZIA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous B.A. No. 368-P of 2018, decided on 8th March, 2018.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, grant of---Female accused, who was in jail since 30-1-2018 for the alleged recovery of narcotic, was no more required for investigation---No prospect of commencement of trial in near future existed---No strong reason was found to withhold the concession of bail to accused---Accused, was directed to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Waqas Ahmed Chamkani, Standing Counsel for the State.

2018 P Cr. L J 1051

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Muhammad Nasir Mahfooz, JJ

KHURSHID KHAN---Petitioner

Versus

Mst. ASIA and 3 others---Respondents

W.P. No. 663-M of 2016, decided on 8th November, 2017.

(a) Criminal Procedure Code (V of 1898)

Ss. 22-A & 22-B Penal Code (XLV of 1860), Ss. 376 & 457---Rape, lurking house- trespass or house-breaking by night in order to commit offence punishable with imprisonment---Quashing of FIR Charge against the accused/petitioner was that he entered the house of respondent by scaling over the wall and straightaway came inside her room and thereafter committed rape on her---Police did not lodge FIR against the accused/petitioner---Respondent/complainant filed petition before Justice of Peace for registration of FIR, who recorded statement, on oath and accepted the petition directing the police for registration of FIR against the petitioner---Police lodged FIR against the petitioner accordingly---Petitioner contended that medical report did not support the offence of Zina and the entire police record was silent regarding the alleged offence, which showed that the petitioner had been charged in a false case and that Justice of Peace had acted beyond his jurisdiction by administering oath while exercising executive powers, therefore FIR be quashed---Validity---Justice of Peace had acted in executive capacity and could not record statements on oath while seized of an application under S. 22-A, Cr.P.C.---Justice of Peace was under the statutory duty to order for registration of FIR without going into the depth of the information and if in his opinion prima facie a cognizable offence was spelt out from the contents of the application, he was left with no choice but to order the registration of the FIR---In the present case, the allegation levelled against the petitioner led to a cognizable offence, thus the Justice of Peace had rightly ordered for registration of the FIR---Petitioner had alternative remedy by way of approaching the hierarchy of concerned police department for holding a fair investigation and after commencement of trial, he could invoke the jurisdiction of the court under S. 249-A or 265-K, Cr.P.C.---Constitutional petition was dismissed in circumstances.

2012 PCr.LJ 776 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 593 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court would refrain to discuss the merits of the case as that would damage the case of either side.

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

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR---Scope---High Court had the power to quash FIR but that was to be exercised in extraordinary circumstances, when no offence was made out on the face of the record or other circumstances of similar nature---High Court could not investigate the disputed questions of facts while exercising Constitutional jurisdiction.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Brig. (Retd.) Imtiaz Ahmad v. Government through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2145 rel.

Muhammad Raziq for Petitioner.

Muhammad Rahim Shah, Assistant A.-G. for the State.

Hafiz Ashfaq Ahmad for Respondent No.1.

2018 P Cr. L J 1096

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

TAJBAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous B.C.A. No. 120-M of 2017, decided on 8th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Pre-arrest bail, cancellation of, petition for---Long absconsion of accused---Effect---Petitioner/complainant contended that accused remained absconded for nearly four decades so Sessions Court had wrongly granted him the concession of bail---Record revealed that role attributed to accused was on the same footing as that of acquitted co-accused---No eye-witness was on record and firing was attributed to three assailants, including accused/respondent, but there was recovery of only one crime empty---When accused was otherwise entitled to the grant of post-arrest bail as of right then mere absconsion for the period of 38 years and 5 months would not stand as a hurdle in the release on bail---Sessions Court had rightly granted the concession of post-arrest bail to the accused, being a case of further inquiry---Grounds for cancellation of bail were altogether different from that of grant of bail and once the bail was granted by the Court of competent jurisdiction, the same could not be interfered unless the bail granting order was palpably illegal, arbitrary and perverse or against the record---No infirmity having been noticed in the impugned order petition for cancellation of bail was declined in circumstances.

Ehsan Ullah v. The State 2012 SCMR 1137; Mitho Pitafi v. The State 2009 SCMR 299 and Sher Azfal and others v. The State and others 2018 PCr.LJ 153 ref.

Fayaz Muhammad Qazi for Petitioner.

Malak Sarwar Khan, State counsel and Muhammad Yar Yousafzai for Respondents.

2018 P Cr. L J 1117

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

HAROON RASHEED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 22-P of 2014, decided on 21st September, 2017.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of the daughter of the complainant---Motive for the crime was dispute over ornaments between the spouses---Ocular account of the occurrence had been furnished by the complainant, who happened to be mother of the deceased---Record showed that complainant had deposed in line with what she had alleged in her report---Son-in-law of the complainant who was cited in the FIR as eye-witness to the crime, was abandoned by the prosecution---Reason advanced by the prosecution in support of abandonment of said witness did not seem to be plausible---Complainant was the sole eyewitness of the case and in order to give corroboration and credence to her testimony, examination of abandoned witness was very vital and material---Solitary eye-witness account was seldom made base for recording conviction unless strong corroboration had come in support of what the solitary eyewitness had deposed---Circumstances established that the presence of sole eyewitness on the spot was not established through reliable and confidence inspiring evidence, hence, her sole testimony could not be accepted---Case against the accused had not been proved beyond any shadow of doubt, benefit of which would resolve in favour of accused--- Accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Solitary statement of complainant/eye-witness---Evidentiary value---Statement by the sole eye-witness had not been supported through any independent source of evidence or any circumstantial evidence of the case---Such evidence could not be relied upon for lacking corroboration.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement---Scope---Record showed that confessional statement of the accused was recorded on the third day of his arrest---Said confessional statement was of no help to the prosecution for conviction for the reason that it was contrary to what the complainant had alleged in her report---Complainant had alleged in the FIR that in her view the accused took out pistol from the folder of his shalwar and fired at her daughter---Accused, in his confessional statement had stated, that early in the morning, when he was asleep, his wife/daughter of complainant hit him with a stone on which he got infuriated and took out a loaded pistol lying in the room and fired at her head with which she died---Attending circumstances suggested that contradictions were on the record as in the FIR, prosecution case was that the accused had fired at the deceased in presence of the complainant while in the confessional statement, it was mentioned that after the occurrence, the accused had informed the complainant about the occurrence on cell phone---Facts of the case showed that there was no consistency and coherence between the confessional statement and the FIR---Confessional statement, therefore, could not be relied upon for lack of corroboration---Circumstances established that the confessional statement had not only negated the prosecution story as narrated in the FIR but it seemed that same was not voluntary one and was the result of fear and promise.

(d) Criminal trial---

----Confessional statement--- Evidentiary value--- Scope--- Conviction could be recorded on the strength of confessional statement alone, provided that the same was free from all sorts of duress, pressure, promise or inducement when any of the said elements were found in the confessional statement, the same could not be relied upon for recording conviction.

Muhammad Tariq Kakar for Appellant.

Mujahid Ali Khan, A.A.-G. for the State.

Respondent No.2/Complainant in person.

2018 P Cr. L J 1125

[Peshawar]

Before Rooh-ul-Amin Khan, J

AURANGZEB---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous B.A. No. 188-P of 2018, decided on 5th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Possessing and trafficking narcotics---Bail, refusal of---On pointation of accused tablets containing ingredients falling within the definition of controlled and psychotropic substances, were recovered from cavities of motor car driven by accused---Search of house of accused, led to discovery and recovery of a huge quantity of such tablets---Samples from the recovered tablets had been sent to Forensic Science Laboratory and as per report thereof, said tablets contained ingredients, which fell within the definition of controlled and psychotropic substances---Said drug was used in clinical pain relief, but was also used by drug users---Plea of accused was that Forensic Science Laboratory having not been equipped with the skill and equipment, was not competent to examine recovered tablets and give any opinion---Validity---Any discussion on the competency of Forensic Science Laboratory to examine the samples of the recovered tablets and authenticity or otherwise of its report; in the light of the rules framed under the Control of Narcotic Substances Act, 1997, would amount to deeper appreciation falling in the domain of the Trial Court---Witnesses to the recovery proceedings, who had no ill-will or enmity with accused, had fully supported the stance of the seizing Officer---Accused, were prima facie connected with the commission of offence; punishment of which fell within the prohibitory clause of S.51 of the Control of Narcotic Substances Act, 1997---Petition for bail was dismissed, in circumstances.

Ms. Farhana Naz Marwat and Malik Nasrum Minallah for Petitioner.

Tariq Khan Kakar for the State.

2018 P Cr. L J 1176

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

HAIDER ALI---Appellant

Versus

The STATE through Additional Advocate-General, Khyber Pakhtunkhwa and another---Respondents

Criminal Appeal No. 184-M of 2017, decided on 26th September, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd, abetment---Suspension of sentence pending appeal---Scope---"Application for suspension of sentence" and "bail application"---Distinction---Accused was convicted and sentenced to imprisonment for life, suspension of which was sought on the grounds that he was innocent and had falsely been charged---No reference of believable evidence had been given in the impugned judgment which was liable to be set-aside---Accused had prayed for grant of bail, pending appeal, and suspension of sentence---Grounds agitated in the application would amount to appreciation of evidence, as the same touched the merits of the case, which could not be considered at this stage---Distinction between the application for grant of bail under S.497, Cr.P.C. and that of suspension of sentence under S. 426, Cr.P.C. was to be kept into view; at the time of grant of bail under S. 497, Cr.P.C., the prosecution evidence was yet to be recorded by the Trial Court, so findings given by the court while granting bail would not have bearing upon trial of the case---While exercising powers under S. 426, Cr.P.C., the court was supposed to act with utmost care and caution for the reasons that evidence had already been recorded and the accused had been adjudged guilty by the competent court of law---Any findings in the circumstances would be beyond the mandate of S. 426, Cr.P.C. and would have direct bearing on the merits of the main appeal---Accused had already been found guilty by the competent court of law and the grounds agitated through the application would amount to appreciation of evidence, which was not the mandate of S. 426, Cr.P.C.--- Application, therefore was dismissed in circumstances.

Soba Khan v. The State and another 2016 SCMR 1325; 2003 SCMR 911 and 2002 SCMR 1211 ref.

Razaullah Khan for Appellant.

Sabir Shah, A.A.-G. for the State.

2018 P Cr. L J 1207

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SEYAR ZEB---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 152-P of 2017, decided on 7th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Khyber Pakhtunkhwa Prohibition Interest on Private Loans Act (XVI of 2016), Ss. 3 & 6---Private money lending---Quashing of FIRs---Alternate remedy---Scope---Petitioners sought quashing of FIRs lodged against them, on the grounds that the same being in utter violation of S. 6 of the Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016, were coram non judice, void ab initio and illegal, hence liable to be quashed---Validity---Allegations against the petitioners in the FIRs were that they were found dealing in the illegal business of advancing loan to the people for the purpose of receiving high interests, which was an offence punishable under S. 3 of the Act---Section 9 of the Act described that offence under the Act would be cognizable, non-compoundable and non-bailable---Station House Officer of Police Station was competent to register FIR under that Act and make arrest without warrant---Innocence of the accused persons and their false implication had to be answered and rebutted before the Trial Court through evidence---Factual controversy could not be undertaken in constitutional jurisdiction---Petitioners had the alternate and efficacious remedy in the shape of invoking the provisions of S. 249-A or 265-K, Cr.P.C.---Constitutional jurisdiction could only be invoked when the aggrieved person had no alternate and efficacious remedy under the law---Constitutional petition was dismissed.

Zeeshan Gohar for Petitioner.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

2018 P Cr. L J 1288

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

The STATE through AAG---Appellant

Versus

IHSANULLAH---Respondent

Criminal Appeal No. 37-M of 2017, decided on 18th January, 2018.

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

----Ss. 419, 468 & 471---Foreigners Act (XXXI of 1946), S. 14---Cheating by personation, cheating and dishonestly inducing delivery of property, using as genuine a forged document, illegal entry into country---Appreciation of evidence---Appeal against acquittal---Prosecution case was that local police had recovered forged National Identity Card from personal possession of the accused being Afghan National residing in the country---Accused could not produce any Identity Card of the status of Afghan Refugee living in the country, thus the present FIR---Record showed that the evidence of prosecution was silent to the effect that the accused had ever used that forged Identity Card for the purpose of personation pretending to be someone else---Accused had disclosed his real identity to be Afghan National living in the country and during his personal search the National Identity Card was recovered from his front pocket, thus the element of cheating by personation was missing in the case---Evidence of prosecution was dormant about the element as to whether the identity card was ever used to cause damage or injury to the general public or due to that act of the accused, any harm had been caused to anyone, thus the basic theme of S. 468, P.P.C. was not on surface---Applicability of S. 471, P.P.C. was not applicable to the case of accused as he never used that identity card as genuine document---Record transpired that the alleged forged card was expired and had not been exhibited during the trial proceedings---Circumstances established that prosecution had failed to bring on record any documentary evidence to the effect that the accused was living as Afghan Refugee illegally in the country, whereas, he had produced a card wherein accused had been shown as Afghan citizen---Appeal being shorn of merits stood dismissed.

Ishtiaq Ahmad Raja v. Ghazanfar Ali, S.I./FIA, Islamabad and another PLD 2004 Lah. 767 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If any single and slightest doubt was created, its benefit would go to the accused.

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

----Ss. 410 & 417---"Appeal against conviction" and "appeal against acquittal"---Appreciation of evidence---Criteria for appreciation of evidence in "appeal against acquittal" was quite different than "appeal against conviction"---In case of acquittal, double presumption of innocence would go in favour of the accused---Even if another view was possible, the view favourable to the accused was to be preferred.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.

Rafiq Ahmad, Assistant Advocate-General for the State.

Ikramullah Khan for Respondent.

2018 P Cr. L J 1310

[Peshawar]

Before Qaiser Rashid Khan, J

BIRADAR KHAN---Petitioner

Versus

The STATE through SHO and 2 others---Respondents

Quashment Petition No. 99-P of 2017, decided on 30th March, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 522-A, 523 & 550---Superdari of vehicle, refusal of---Petitioner had alleged that he purchased the vehicle from respondent after payment of due consideration who in turn handed over the transfer letter and the registration book of the vehicle but he had backed out from his commitment---Petitioner approached the local Nazim for getting documents of the car, whereafter a jirga was nominated who in turn handed over the car to the local police---Petitioner had urged that he was bona fide purchaser, owner and last possessor of the vehicle and the police had held him entitled to the same, he therefore requested the Court to handover the vehicle to him on superdari---Vehicle was not a stolen one and the rival claimant had not approached the court---Application of petitioner for the superdari of the vehicle had been turned down by the courts below---Validity---Certificate of registration of the vehicle showed that initially its registered owner was a Bank and then it was transferred to first purchaser, then to the second purchaser---Two respondents produced a transfer order form duly attested by the Motor Registration Authority, which showed that second purchaser had transferred the vehicle in the name of third purchaser, who got registered the vehicle in his name---First Information Report was lodged by the third purchaser against the two respondents for having defrauded him in respect of that vehicle---Real owner and last possessor of the vehicle and its ultimate fate could only be decided by the competent court after recording evidence---Request of the petitioner for the grant of vehicle on superdari could not be acceded to at the present stage---Petition stood dismissed accordingly.

Alam Khan for Petitioner.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Asfand Yar for Respondents.

2018 P Cr. L J 1322

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

MUHAMMAD FAISAL SHAH---Petitioner

Versus

KHALIQ-UR-REHMAN and another---Respondents

Criminal Miscellaneous No. 76-M of 2016, decided on 31st January, 2018.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 337-A(ii) & 53---Causing shajjah-i-madihah---Petition for quashment of order to deposit the compensation amount of arsh while granting bail---Scope---Petitioner accused under S. 337-A(ii), P.P.C., moved application for bail before the Trial Court, which was accepted, with direction to deposit amount of arsh equal to 5% of Diyat, to be paid to the complainant/injured as compensation and if the prosecution succeeded to establish guilt of the accused, after conclusion of trial he would be at liberty to withdraw the same---Validity---Section 53, P.P.C. described that arsh was punishment, which was to be awarded to the accused if he was found guilty of the offence charged with---Such direction to the petitioner amounted to pre-trial conviction---Circumstances established that impugned order to the extent of such condition was not maintainable---Impugned order was modified accordingly.

Barrister Dr. Adnan Khan for Petitioner.

Suleman Khan for the State.

Nemo for Respondent No.1.

2018 P Cr. L J 1345

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

QAYUM NAWAZ and others---Petitioners.

Versus

DISTRICT POLICE OFFICER, D.I. KHAN and others---Respondents

W.P. No. 841-D of 2016, decided on 5th March, 2018.

Penal Code (XLV of 1860)---

----Ss. 496-A & 109---Enticing or taking away or detaining with criminal intent a woman, abetment---Quashing of FIR---Scope---Complainant had alleged that accused enticed away her daughter for the purpose of committing Zina along with gold ornaments weighing 04 tolas and cash amount of Rs. 96,780/- at the behest of co-accused persons---Record showed that FIR constituted commission of a cognizable offence and for reaching to a correct conclusion, proper investigation, inquiry and pro and contra evidence was required to be recorded by the court of competent jurisdiction---Allegedly, abductee had entered into marriage with accused of her own free will and she appeared before the Judicial Magistrate and got recorded her statement under S. 164, Cr.P.C.---Said statement of alleged abductee was recorded in the absence of the complainant party, which was yet to be cross-examined---Constitutional petition being unjustified on account of having no substance was dismissed and quashment of FIR was declined.

Bashir Ahmad v. Zafer-ul-Islam PLD 2004 SC 298 and Sher Afgan Khan Niazi v. Ali Habib and others 2011 SCMR 1813 rel.

Ahmad Ali Khan Marwat and Miss Shumaila Awan for Petitioners.

Bahadar Khan Marwat and Kamran Hayat Khan Miankhel AAG for Respondents.

2018 P Cr. L J 1363

[Peshawar]

Before Ikramullah Khan and Ishtiaq Ibrahim, JJ

AJMAL KHAN and another---Appellants

Versus

The STATE and another---Respondents

Eh. Criminal Appeals Nos. 48 and 50 of 2011, decided on 19th December, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a), 31-A & 32---Criminal Procedure Code (V of 1898), S.353---Embezzlement and abscondance---Appreciation of evidence---Recording of evidence in absence of accused---Arrest of proclaimed offender---Procedure of trial---Accused was declared proclaimed offender who was arrested during pendency of trial of co-accused---Accused was convicted and sentenced by Trial Court for committing embezzlement and willfully remaining absconder on the basis of evidence recorded in his absence---Plea raised by accused was that evidence relied upon by Trial Court for convicting him was recorded in his absence---Validity---Trial Court had neither given opportunity to accused of cross examining witnesses who were examined in his absence except investigating officer nor framed fresh charge against co-accused already facing trial on commencement of trial against accused---Safe and proper course for Trial Court was either to pronounce judgment against co-accused on conclusion of trial against him or to have charged both accused afresh for de novo trial---Trial Court did not adopt either of the two alternatives and had committed an illegality---High Court set aside conviction and sentence awarded to accused and remanded the case to Trial Court to frame fresh charge against accused and proceed for trial afresh in accordance with law---Appeal was allowed accordingly.

Bahadur Sher and another v. The State 1992 PCr.LJ 378 fol.

Barrister Waqar Ali for Appellant No.1.

Barrister Syed Mudassar Ameer for Appellant No.2.

Syed Azim Dad, Senior Prosecutor for NAB for Respondents.

2018 P Cr. L J 1372

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

ALI MUHAMMAD KHAN---Petitioner

Versus

NAZIR-UL-ISLAM and another---Respondents

Criminal Revision No. 1-M of 2014, decided on 11th December, 2017.

Criminal Procedure Code (V of 1898)---

----S. 367---Judgment, contents of---Appeal had not been decided in accordance with the mandatory provisions of S. 367, Cr.P.C.---Effect---Complainant had pointed out that impugned judgment had been rendered by the Trial Court in violation of S. 367, Cr.P.C. as the Trial Court had not determined the points and findings were delivered in slipshod manner---Validity---Main theme of S. 367, Cr.P.C. was that the judgment should contain the points for determination, the decision thereon and the reasons for the decision---Impugned judgment having been rendered in violation of the statutory provisions of S. 367, Cr.P.C., was not sustainable in the eye of law---Criminal revision was allowed by setting aside impugned judgment of conviction and the case was remitted to the Trial Court for decision afresh as per spirit of S. 367, Cr.P.C.

Sahib Khan and 4 others v. The State and others 1997 SCMR 871; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698; Khalid Mehmood v. The State 2004 PCr.LJ 984 and Farrukh Sayyar and 2 others v. Chairman NAB Islamabad and others 2004 SCMR 1 rel.

Amir Gulab Khan for Petitioner.

Sher Muhammad Khan (Shangla) and Rafiq Ahmad, Assistant Advocate-General for Respondents.

2018 P Cr. L J 1409

[Peshawar]

Before Waqar Ahmad Seth and Mohammad Ibrahim Khan, JJ

BASHIR KHAN---Appellant

Versus

The STATE through Prosecutor-General, National Accountability Bureau, Islamabad---Respondent

Eh. Criminal A. No. 05-P of 2016, decided on 6th December, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 32 & 34---Criminal Procedure Code (V of 1898), S. 221---Corruption and corrupt practices---Appreciation of evidence---Defective charge---Delegation of powers---Specific clause, non-mentioning of---Accused was a carriage contractor who was alleged to have misappropriated large quantity of wheat during transportation---Accused was put to trial under National Accountability Ordinance, 1999, resultantly he was convicted and sentenced by Trial Court---Plea raised by accused was that no specific clause of S. 9 of National Accountability Ordinance, 1999, was mentioned by Trial Court and the reference was filed unauthorizedly---Validity---Judge of Trial Court committed an error by convicting accused and found him guilty of the offence falling under S. 9 of National Accountability Ordinance, 1999, as the Court had not taken care of to prosecute and convict accused under exact clause of S. 9 of National Accountability Ordinance, 1999---In the reference allegations of misappropriation was elaborately drawn but fine was not reduced into a well-defined charge---High Court set aside conviction and sentence awarded to accused and case was remanded to Trial Court for decision afresh---High Court directed the Trial Court to reframe charge under proper head only if it would decide first that the reference was competently filed---Appeal was allowed accordingly.

Muhammad Iqbal Ahmad v. The State 2016 YLR 2547; Aminul Haq v. Crown PLD 1952 FC 63; Hassan Askari v. The State 2011 PCr.LJ 778; Abdus Salam Molla v. The Crown PLD 1955 FC 129; University of Peshawar v. Mian Mohsan Shah 1998 SCMR 697 and Mohammad Nawaz v. The State 2016 SCMR 267 ref.

Qazi Jawad Ehsanullah for Appellant.

Zair Nawaz Khan, ADPG for NAB.

2018 P Cr. L J 1465

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

ZAHIR RAHMAN and another---Appellant/Petitioner

Versus

STATE through Additional Advocate-General, Peshawar High Court and another---Respondents

Criminal Appeals Nos. 131-M and Criminal Revision No. 30-M of 2015, decided on 23rd October, 2017.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence--- Retracted Judicial confession---Scope---In the present case, there was no eyewitness of the occurrence and complainant charged unknown accused for the murder of his brother, by lodging FIR on 20.9.2013---Complainant and father of the deceased recorded their statements under S. 164, Cr.P.C. wherein, they charged the accused for the murder of the deceased---Accused contended that Trial Court convicted him on the basis of his confessional statement---Accused further contended that he made no confession because at the time of recording his statement, he was juvenile and was afforded no opportunity of consultation with his parents/guardian or a counsel before recording his statement, therefore, the said statement had no evidentiary value---Validity---Admittedly, the occurrence was an unseen incident and the prosecution case hinged on confessional statement of the accused---Record showed that the accused was arrested on 2.10.2013 and produced before the Judicial Magistrate on 3.10.2013---Accused, being a minor, was to be provided opportunity of counseling either with his guardian or with a lawyer and his confession was recorded in presence of Naib Court who was in uniform at that time---Accused being juvenile should have been provided counselling facility of guardian or a lawyer of his choice by the Judicial Magistrate before recording his confession---Judicial Magistrate afforded him no opportunity to be alone for thinking---Accused had been charged with the offence entailing capital punishment and keeping in view the intensity of the charge and minority of the accused, the Judicial Magistrate ought to be extra-cautious while recording his confession as the same could be used for his conviction in trial---Judicial Magistrate had admitted during his cross-examination that the accused did not disclose any reason for recording his confessional statement--- Confessional statement of the accused did not disclose as to whether the same was made voluntarily or otherwise---Possibility of the accused, being tutored or tortured by the local police before recording his confessional statement could not be ruled out, especially when no opportunity of counselling by parents or a lawyer was afforded to him---Circumstances established that requisite care and vigilance was not taken by the Judicial Magistrate before recording confessional statement of the accused nor by the Trial Court while convicting him on the basis of said statement---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Hashim Qasim and another v. The State 2017 SCMR 986; Abdul Haleem v. The State 1984 PCr.LJ 611; Murtaza and 2 others v. State 1996 PCr.LJ 358; State through Advocate-General Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1 and Abdul Hamid v. The State PLD 1980 Pesh. 15 rel.

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

----S. 164---Judicial confession, recording of---Scope---Judicial Magistrate should essentially observe all the mandatory precautions as per High Court Rules and Orders before recording confessional statement of the accused, so that all signs of fear inculcated by the investigating agency in the mind of the accused were to be shed out.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 174 rel.

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

----S. 302(c)---Qatl-i-amd---Recovery of crime weapon on the pointation of accused---Reliance---Scope---Record showed that the crime weapon, pistol, was recovered from a room (hall) of the house clung to a wooden pillar---Said room was jointly used by all the inmates of the house and was not in the exclusive use of the accused---No independent witness was associated with the alleged recovery---Application for opinion of the arms expert regarding the crime weapon and the empty shells was made on 2.10.2013 but the same was received at Forensic Science Laboratory on 11.10.2013---Prior to that there was an application for verification of the empties as to whether the same were fired from one or different weapons---Nothing was available on record to explain as to why the said incriminating articles were retained for nine days and the prosecution had not bothered to examine the person who took the parcel to Forensic Science Laboratory or Muharrir of the police station who might have kept the same in his custody---Contents of Forensic Science Laboratory report and that of the application for opinion of arms expert were contradictory---Prosecution had alleged that crime empties had already been sent to Forensic Science Laboratory and were in safe custody till recovery of the pistol, but report of Forensic Science Laboratory showed that both the pistol and the crime empties were received at the laboratory on 11.10.2013---Circumstances established that not only the recovery was doubtful but the status of the Forensic Science Laboratory report was also suspicious, hence the same were of no use to the prosecution.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Prosecution produced circumstantial evidence in the shape of Call Data Record (CDR), which was not clear as to whether the telephone/SIM number was in the name of the accused as the said fact had not been established through record---Even assuming that the last call was made by the accused to the deceased that might be made for any other reason and not for committing the offence---Placing of mobile data on the record in circumstances, would hardly be of any use for the prosecution.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

Hazrat Rehman for Appellant (in Criminal Appeal No. 131-M of 2015).

Muhammad Rahim Shah, Assistant Advocate-General for the State (in both cases).

Saeed Ahmad for the Complainant/Respondent/Petitioner (in both cases).

Hazrat Rehman for Respondent/Convict (in Criminal Revision No. 30-M of 2015).

2018 P Cr. L J 1490

[Peshawar (Abbottabbad Bench)]

Before Syed Muhammad Attique Shah and S. Arshad Ali, JJ

MUHAMMAD IBRAHIM---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 1251-A of 2016, decided on 24th July, 2017.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), Ss.203, 247 & 265-H---Illegal dispossession of property---Dismissal of complaint for non-prosecution---Complaint filed by the petitioner, was dismissed by the Trial Court for non-prosecution and want of proof and accused was discharged---Application filed by the petitioner for restoration of complaint having been dismissed by the Trial Court, petitioner had challenged the impugned orders in constitutional petition---Validity---Question of law involved in the case was "whether after framing of charge under S.3 of the Illegal Dispossession Act, 2005, a complaint could be dismissed for non-prosecution and accused could be discharged"---Once charge was framed, then under S.265-H, Cr.P.C., either accused was to be acquitted or convicted and there was no other alternative available to the Trial Court---Once charge was framed in a complaint case, then very complaint could be dismissed for non-prosecution and said dismissal would result in acquittal of accused---Accused could not be discharged from said case, rather could only be convicted or acquitted from the charge so framed---Trial Court, in the present case, had committed grave illegality while discharging the accused from the case and by doing so had failed to properly exercise its jurisdiction---Impugned orders, being illegal and coram non judice were set aside and case was remanded to the Trial Court for its decision on merits strictly in accordance with law.

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

----Preamble, Ss.3 & 4---Purpose and object of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 had been brought for the protection of lawful owners and occupiers of immovable property from their illegal and forceful dispossession at the hands of land grabbers and land mafia and to further provide a quick remedy to the affectees and victims of illegal and forceful dispossession and also to discourage and curtail the illegal activities of the land grabbers and mafia---Purpose of the Act was to provide a forum for quick investigation and trial of offences under the said Act.

Shabbir Hussain Gigyani for Petitioner.

Khan Nawaz and Raja Muhammad Zubair, AAG for Respondents.

2018 P Cr. L J 1513

[Peshawar]

Before Ishtiaq Ibrahim, J

MUHAMMAD ARSHAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 251-P of 2016, decided on 13th April, 2018.

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

----S. 431---Khyber Pakhtunkhwa Child Protection and Welfare Ordinance (II of 2010), S. 53---Rape and sexual assault---Death of accused during pendency of appeal---Abatement of appeal---Scope---Accused, after conviction was awarded imprisonment and also burdened with fine of Rs.2,00,000 (two lac)---Accused filed appeal against his conviction and sentences, but during pendency of appeal, he died---Appeal filed by accused who had been sentenced to imprisonment and fine would not abate on his death---Sentence of imprisonment would only be abated and not that of fine on his death pending hearing of appeal---Appellate Court could go into propriety and legality of sentence of fine even after death of accused---Usually a criminal appeal would abate on the death of accused, but S.431, Cr.P.C., seemed to have made an exception to the general rule---Under S. 431, Cr.P.C., appeal against sentence of fine would not abate by reason of the death of accused, because it was not a matter which affected his person, but one which would affect his estate.

Dr. Ghulam Hussain v. The State 1971 SCMR 35; Govindrajalu and others v. State of Mysore AIR 1962 Mysore 275 (V 49 C 83); Sm. Vidya Devi v. State AIR 1957 Allahabad 20 (V 44 C 2 Jan.) and Dilbar Sher and others v. The State NLR 1998 Criminal 112 ref.

(b) Khyber Pakhtunkhwa Child Protection and Welfare Ordinance (II of 2010)---

----Ss. 2(1)(Y) & 53---Qanun-e-Shahadat (10 of 1984), Art. 19---Sexual abuse of child---Scope---Appreciation of evidence---At the time of examination of the victim, her age was recorded as 7/8 years by the Trial Court---Cross-examination of the victim was only in the form of suggestion, which had been denied by the witness---Victim was never cross-examined by the defence on the material aspect of the case---Court, no doubt, could take into consideration the suggestions, but suggestions were to be considered in the light of other material elicited from the particular witness---Testimony of the victim remained un-shattered and unchallenged---Mother of the victim also supported the case of the prosecution---Mother took the victim to the Police Station on the very first day and lodged the report---Mother, though was not an eye-witness, but her statement could be considered as admissible within the meaning of Art.19 of the Qanun-e-Shahadat, 1984 as res gestae---Credibility of the mother of the victim, could not be damaged---Both the eye-witnesses, had withstood the test of cross-examination and their credibility, remained un-rebutted---Medical evidence and the serologist analysis supported the statement of victim---Definition of the "child abuse" as given in Khyber Pakhtunkhwa Child Protection and Welfare Ordinance, 2010 was squarely attracted to the facts and circumstances of the case due to the reason that the victim deposed in her court statement that accused inserted his two fingers in her private part---Accused was rightly convicted by the Trial Court for the said offence---Appeal to the extent of sentence of imprisonment had already been abated, while his conviction and sentence of fine was maintained.

Sohail Akhtar for Appellant.

Malik Akhtar Hussain, AAG for the State.

Naveed Akhtar for Respondent.

Muhammad Ashfaq Afridi as Amicus Curiae.

2018 P Cr. L J 1550

[Peshawar]

Before Mohammad Ibrahim Khan, J

GULZAR---Petitioner

Versus

The STATE and another---Respondents

Criminal M. B.A. No. 2610-P of 2017, decided on 22nd December, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, and common intention---Bail, refusal of---Entry wounds sustained from same direction---Scope---General role of firing was attributed to accused persons without mentioning of exact firearm weapons---Petitioner contended that High Court previously granted bail to an accused in some other case when deceased sustained firearm entry wounds from the same direction so it would be determined during trial as to whether the occurrence was the job of single person or otherwise---Medical report revealed that there were four entry wounds having single exit wound on the skull, causing fracture of skull bone and brain matter was laying outside along with the other entry wounds of different sizes which were on the right shoulder and left side of chest including abdomen---Medical officer would be examined by the Trial Court with regard to the different sizes of the entry wounds, therefore, the role of the present petitioner was dissimilar from the role given to said accused person who had been entitled for bail as emphasized by the present petitioner---First Information Report was promptly lodged keeping in view the distance between the place of occurrence and the police station---Petitioner had remained absconded for more than a year and his brothers/co-accused persons were also fugitive from law, therefore, the petitioner did not deserve the concession of bail---Bail was refused to the accused, in circumstances.

Nazar Gul v. The State and another 2016 PCr.LJ 297 distinguished.

Waqas Ahmad Chamkani for Petitioner.

Iftikharud Yousafzai, AAG for the State.

Nemo for the Complainant.

2018 P Cr. L J 1563

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

SULTANAT KHAN---Appellant

Versus

The STATE and another---Respondents

J. Cr. A. No. 233-M of 2016 with Murder Reference No. 8-M of 2016, decided on 28th November, 2017.

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

----Ss. 302, 324, 337-F(iii) & 100---Qatl-i-amd, attempt to commit qatl-i-amd, causing mutalahimah---Appreciation of evidence---Right of private defence of the body extending to cause death---Scope---Sentence, reduction in---Ocular account supported by medical evidence---Prosecution case was that the complainant erected walls of under construction cattle-shed near the house---Accused demolished the wall of the cattle-shed---Complainant and his wife asked the accused as to why he had done so, on which the accused got enraged, picked up the Kalashnikov and fired at both of them, as a result of which, the complainant sustained injury on his right shoulder, whereas his wife was hit on different parts of her body and died on the spot---Admittedly, the accused and complainant were father and son inter se while the deceased was wife of the complainant---Accused had remarried after death of the mother of complainant and from then onward the relations between the issues of the first wife and accused became strained---In the present case, complainant had himself sustained injuries in the same occurrence and his presence on the place of occurrence at the relevant time was very much established because both the parties were residing in the same house---Record showed that accused lodged a report when he was arrested and was also medically examined and certain blunt injuries were found on his body sustained by him in the same occurrence---Conduct of the accused showed that after the occurrence, he was present in his house and when police came, his report was recorded and he was referred for medical treatment---Complainant party had suppressed the injuries sustained by the accused---Report of accused was also silent about the casualty of the other side---Accused had not taken the plea of self defence neither in his report nor in his statement under S. 342, Cr.P.C.---Record transpired that the accused sustained multiple injuries mostly on his head in the same occurrence---Stamps of injuries on the person of the accused who being alone at the relevant time in rivalry of his sons and suppression of real facts of the occurrence by both the sides were the circumstances suggesting the act of firing by the accused to have been committed in exercise of his defence---Benefit of said self defence could be extended to him irrespective of the fact that he did not specifically take that plea during trial---Attending circumstances of the case suggested that accused had acted in his defence but had exceeded what was required for his defence---Said fact was evident from medico-legal reports of both the deceased and injured complainant as complainant received one bullet on his shoulder whereas the deceased sustained multiple firearm injuries on her body---Act of firing by the accused in his defence, discernible from circumstances of the case, as well as the relationship between the parties, were the factors, which could be considered for conviction of the accused under S. 302(c), P.P.C. instead of S. 302(b), P.P.C.---Accused having exceeded his right of self defence, sentence of fourteen years would meet the ends of justice in the circumstances of the case---Appeal was partially allowed, conviction was maintained, sentence of accused was altered from death to imprisonment for fourteen years in circumstances.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Azmat Ullah v. The State 2014 SCMR 1178 rel.

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

----S. 100---Self-defence, right of---Scope---If the accused had not specifically taken the plea of self-defence, but the circumstances of the case and the prosecution evidence suggested that the accused had acted in his self-defence, its benefit could be extended to him.

Ghulam Farid v. The State 2009 SCMR 929; Munshi Ram and others v. Delhi Administration AIR 1968 SC 702 and Gottipulla Venkata Siva Subrayanam and others v. State of Andhra Pradesh and another AIR 1970 SC 1079 rel.

Razaullah for Appellant.

Rafiq Ahmad, Assistant Advocate-General for the State.

Complainant in person.

2018 P Cr. L J 1633

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem and Ishtiaq Ibrahim, JJ

MUHAMMADULLAH and another---Appellants

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No. 21-M of 2014, decided on 20th February, 2018.

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

----S. 154---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---First Information Report was lodged by the accused---Effect---First Information Report by itself was not a substantive piece of evidence unless its contents were affirmed on oath and the maker thereof was subjected to the test of cross-examination---Registration of FIR at the instance of accused was a confession before police which being extra-judicial in nature, was not admissible in evidence against accused.

Muhammad Saleh v. The State PLD 1965 SC 366; Muhammad Bakhsh v. The State PLD 1956 SC 420; Nasar Ali v. The State of Utarparadesh AIR 1957 SC 366 and Ghaus Muhammad alias Ghausa and another v. The State 1979 SCMR 155 rel.

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

----S. 161---Statements of witnesses recorded at belated stage---Scope---Statement of the prosecution witnesses were recorded after 13/14 days of the occurrence---No plausible explanation had been given by prosecution as to why such statements were recorded at such a belated stage---Statement of such witnesses could not be relied upon.

Rahat Ali v. The State 2017 SCMR 584 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence---Prosecution case was that sister-in-law of the accused persons and her alleged paramour/son of prosecution witness were reported to have been done to death by the accused persons for their illicit relations after they were found together in a room during night---Father of the deceased, had introduced the last seen evidence against co-accused, while describing the motive in his statement, he stated that he had a dispute with accused persons over the boundary line of land and they had threatened him for dire consequences and due to said reason, accused persons murdered his son---If the accused persons had allegedly threatened the father of deceased for dire consequences, then departure of the deceased at night with co-accused seemed to be very strange and ridiculous---In the present case, neither the last seen evidence had been reported in time nor it had gotten corroboration from the unimpeachable and independent source, therefore, the same was of no avail to the prosecution.

Fayyaz Ahmad v. The State 2017 SCMR 2026 and Muhammadullah v. The State PLD 2002 Pesh. 132 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Circumstantial evidence---Prosecution case was that sister-in-law of the accused persons and her alleged paramour were reported to have been done to death by the accused persons for their illicit relations after they were found together in a room during night---Matter was reported to the police by the accused himself---In the FIR, it was mentioned that male deceased entered the house of female deceased at 9.00 p.m. while accused was watching him and he tried to open the door but it was locked from inside and thereafter had broken the door with axe at 12.30 a.m.---Question arose as to for what purpose the accused waited for three and half hours when finally his intention was to break the door with axe---Said infirmity in the FIR had not been explained by the prosecution---Record showed that there was inconsistency between post-mortem report of male deceased and contents of the FIR---Use of fire arms in the occurrence was not mentioned in the FIR but the Medical Officer found fire arm injuries on the dead body of the deceased---Said glaring contradiction in the prosecution case created doubt about the guilt of accused persons as well as their alleged common intention---Prosecution version was that the dress and shoes of the accused were stained with blood, when he came to police station---Forensic Science Laboratory Report regarding the said articles though was positive for human blood but it had not been clarified whether the group thereof matched with the group of both the deceased or not---Prosecution, in circumstances, had not established that the dress and shoes of accused were stained with the blood of deceased--Mere fact that the dress and shoes of the accused were stained with human blood was not sufficient to prove that he had committed the murder of the deceased---Prosecution was duty bound to establish its case against the accused by providing all links in unbroken chain, which were not available in the present case---Mere fact that the dead bodies were recovered from the house of brother of accused, could not be considered enough for holding the accused persons responsible for the murders, they were charged with---Recovery of axe, knife and Kalashnikov, was allegedly made on the pointation of accused---Record transpired that all the marginal witnesses to the recovery memos were Police Officials---No private witness had been associated with the investigation, despite the fact that other houses were situated near the place of occurrence nor the police bothered to record statements of the other inmates of the house including the children of deceased lady---Circumstances and facts of the case suggested that prosecution case rested on very weak circumstantial evidence which could not be considered randomly for conviction of the accused---Circumstances established that prosecution failed to establish its case beyond shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Fayyaz Ahmad's case 2017 SCMR 2026 and Muhammad Jamshed and another v. The State and others 2016 SCMR 1019 rel.

1985 SCMR 1573; PLD 1965 SC 366; PLD 1956 SC 420; PLD 1956 SC 111; PLD 1961 (WP) Lahore 146; 1975 PCr.LJ 882; 2008 MLD 1007; 2016 YLR 787; 2016 PCr.LJ 1319; 2017 PCr.LJ 1563; PLD 1975 SC 607; PLD 2005 SC 288; PLD 2008 SC 115; PLD 2017 FSC 1; 2011 PCr.LJ 1870; PLD 2006 Pesh. 5; 2011 YLR 2618; 2012 YLR 1386; 2005 PCr.LJ 1638; 2008 YLR 580 and 2015 YLR 249 ref.

Sher Muhammad Khan for Appellants.

Sahibzada Bahauddin for the State.

Fazli Ghafoor for Respondent No.2.

2018 P Cr. L J 1682

[Peshawar]

Before Ikramullah Khan and Ishtiaq Ibrahim, JJ

PROSECUTOR-GENERAL ACCOUNTABILITY, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD---Appellant

Versus

NASEEM UR REHMAN, EX-MNA and 2 others---Respondents

Eh. Criminal Appeal No. 8-P of 2017, decided on 9th May, 2018.

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

----Ss. 9(a)(v), 22 & 32---Criminal Procedure Code (V of 1898), S. 265-K--- Constitution of Pakistan, Art. 18---Appeal against acquittal---Assets beyond known sources of income---Investigation---Principles---National Accountability Bureau was aggrieved of order passed by Accountability Court whereby accused persons were acquitted of charge in exercise of powers under S. 265-K, Cr.P.C.---Validity---Persons having no nexus with corruption or corrupt practices specifically defined under S. 9 of National Accountability Ordinance, 1999, jurisdiction of National Accountability Bureau could not be extended to such persons holding or accumulating properties privately through any legal business---National Accountability Bureau could not harass, inquire and investigate against any person who stood alone having no remote or direct or indirect nexus with offences, described/prescribed under S. 9 of National Accountability Ordinance, 1999 or incidental and ancillary thereto---Accused persons were acquitted as charge framed against them did not disclose any offence in view of S. 9 of National Accountability Ordinance, 1999 and evidence was shaky---No evidence was brought on record that accused persons were involved in any offence of tax evasion, cheating, fraud, corruption or corrupt practices---Accused persons had huge property but same was not concealed and was well mentioned in income tax returns and same was confirmed by relevant prosecution witnesses themselves---Prosecution failed to prove that concerned business of accused persons were illegal---Appeal was dismissed in circumstances.

PLD 2013 SC 594; Muhammad Hashim Babar's case 2010 SCMR 1697 and PLD 2011 SC 1144 ref.

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

----Ss. 9(a)(v) & 14(c)---Assets beyond known sources of income---Presumption---Shifting of onus---Principles---National Accountability Bureau has not invested with unbridled, general jurisdiction to inquire into and investigate against each and every person having accumulated properties on any pretext that such properties were not outcome of corruption and corrupt practices and shift burden in terms of S. 14 of National Accountability Ordinance, 1999 to such person who has no nexus with matters enumerated in Preamble of National Accountability Ordinance, 1999 or with provisions contained in S. 9 of National Accountability Ordinance, 1999.

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

----S. 9(a)---Corruption and corrupt practice---Tax evasion---Effect---Special procedure is available in cases of evasion of tax---If such evasion is construed to be an offence under S. 9 of National Accountability Ordinance, 1999, then National Accountability Bureau is required to prove such evasion of taxes through conceivable evidence.

Zain Nawaz Khattak, Special Prosecutor, NAB for Appellant.

Barrister Syed Mudassir Amin and Farooq Amjad Mir for Respondents.

2018 P Cr. L J 26

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD NASEEM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 309 and Criminal Revision No. 19 of 2015, decided on 2nd May, 2017.

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

----S. 302(b)--- Criminal Procedure Code (V of 1898), Ss. 345(2) & 561-A--- Qatl-i-amd--- Appreciation of evidence--- Compromise---Appellants were convicted and sentenced for life imprisonment as tazir---Appellants had challenged their conviction through appeal, whereas complainant filed revision petition for enhancement of sentence awarded to the appellant---Pending appeal, appellants had entered into compromise with the legal heirs of the deceased, who had pardoned the appellants---Compromise documents were sent to the Trial Court for verification and recording the statements of the legal heirs of deceased to confirm as to whether the compromise effected between the parties was genuine or otherwise---Record showed that deceased had eight legal heirs comprising one widow and seven children---Out of seven children only one son and one daughter were major, while rest were minors being below the age of 15-years---Trial Court had recorded the statements of complainant, real brother of deceased, widow, a major son and a major daughter of deceased---Record showed that legal heirs of deceased entered into compromise with the accused-appellants voluntarily and without any coercion---Legal heirs of deceased had verified the contents of compromise deed as they pardoned the accused-appellant in the name of Almighty Allah and did not intend to proceed further against the accused-appellants---Right of Diyat had been waived by the legal heirs of deceased---Trial Court confirmed that the compromise arrived at between the parties was genuine---Compromise deed was supported by the affidavits of the legal heirs of the deceased---Since the offence under S. 302(b), Penal Code, 1860 was compoundable and parties had entered into compromise, as such application under S. 345(2), Cr.P.C. was accepted subject to payment of Diyat amount as per S. 323, Penal Code, 1860 to the extent of minors---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b), 309 & 338(E)---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd---Punishment as Tazir---Compounding of offence---Principles---Section 309, P.P.C. pertaining to waiver and S. 310, P.P.C. to compounding in case of murder were relevant only to the case of Qisas---Matter of compromise between the parties, in case of Tazir, was governed and regulated by the provision of S. 345(2), Cr.P.C. read with S. 338-E, Penal Code, 1860.

Abdul Jabbar v. The State and others 2007 SCMR 1496 rel.

Adnan Ejaz and Zia-ul-Haq for Appellants.

Muhammad Yahya Baloch, D.P.G. for Respondents.

2018 P Cr. L J 117

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

LAL BAKHSH aka LAL MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-89 of 2016, decided on 31st July, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Medical Officer, who conducted external examination of the dead body of the deceased and found injuries on his person, which were mentioned in his medical and death certificate---Said certificates showed that all the injuries were received by the deceased by fire arm---Unnatural death of the deceased was not disputed by the defence---Eyewitnesses had fully corroborated each other to the effect that deceased was murdered by the firing of the accused and co-accused and no question of natural death of the deceased was put to the witnesses by the defence and even to the Investigating Officers---Circumstances established that the death of deceased was unnatural.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused and co-accused were charged for the murder of father of the complainant by firing shots---Victim succumbed to the injuries at the spot---Ocular account was furnished by three witnesses including complainant---Complainant was son of the deceased and his presence at home was natural and nowhere it was disputed by the defence---Complainant at the relevant time of occurrence, reported the case to the police through written complaint, wherein it was specifically mentioned the presence of eye-witnesses---Presence of eye-witnesses including complainant was proved and all the three witnesses had corroborated each other on all material counts---Record showed that certain discrepancies were available in the statements of witnesses, which would not materially effect the case of prosecution---Said witnesses deposed the scene of occurrence in line and their statements despite lengthy cross-examination were not shaken by the defence on material counts---Defence did not put a single question to any of the witnesses of ocular account with regard to their presence and false implication of accused---Statements of all the three eye-witnesses remained firm against the accused---Appeal against conviction and sentences was dismissed in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Testimony of closely related witnesses---Reliance---Scope---Defence had objected that only the interested witnesses had been produced by the prosecution---Effect---Eye-witnesses were related to the deceased but such relation did not render them interested witnesses until and unless it was proved that they were inimical to the opposite party.

Irshad alias Shada v. The State 1992 PCr.LJ 2273 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Recovery of crime empties and blood-stained articles---Reliance---Scope---Eight empties of T.T. pistol were collected and taken into possession from the scene of occurrence---Blood-stained earth and blood-stained clothes of the deceased were taken into possession and were sent to the Forensic Science Laboratory for chemical analysis and reports were received in affirmative---T.T. pistol was recovered at the instance of accused, which was sent to the Ballistic Expert for chemical analysis---Report of Ballistic expert showed that the recovered pistol was in working condition and the empties recovered from the place of occurrence were tested and matched with the said pistol, which were found being fired from the said pistol---Recoveries could be relied in circumstances.

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

----Ss. 302 & 34---Qanun-e-Shahadat Order (10 of 1984), S. 40---Qatl-i-amd, common intention---Appreciation of evidence---Disclosure of accused---Effect---Record showed that after the arrest of accused, he disclosed to the witnesses that deceased was blamed for wall chalking of their walls, written abusive words and deceased often had quarrel with his son; due to said reasons, he killed the deceased---After recording said disclosure, police on his pointation, recovered the crime weapon T.T. pistol along with two live cartridges from the house and beneath the bed of the accused, which were taken into possession---Such disclosure of the accused and recovery of crime weapon from his residential room connected the accused with the commission of offence.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, proof of---Effect---Motive of the crime had been established from the disclosures of the accused---Accused was aggrieved and was annoyed with the deceased on account of strained relations with each other, which was result of murder of the deceased---Motive as disclosed by the accused was proved for committing the murder of the deceased.

Muhammad Amjad v. The State PLD 2003 SC 704 rel.

Bahlol Khan Kasi for Appellant.

Muhammad Yahya Baloch, D.P.G. for the State.

Ahsan Rafiq Rana for the Complainant.

2018 P Cr. L J 148

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD alias KHUDA BAKHSH---Petitioner

Versus

ATC MAKRAN AT TURBAT and 2 others---Respondents

C.Ps. Nos. (T) 103 and (T) 80 of 2016, decided on 12th June, 2017.

Constitution of Pakistan---

----Arts. 9, 25 & 199---Pakistan Prison Rules, R. 200---Penal Code (XLV of 1860), Ss. 365-A, 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7(e) & 21-F---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional petition---Act of terrorism, kidnapping or abduction for extorting property, valuable security etc,. attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention---Remissions, grant of---Accused was convicted and sentenced under S. 365-A, P.P.C. read with S. 7(e) of the Anti-Terrorism Act, 1997---Said conviction and sentence was assailed through criminal appeal and the same was dismissed---Accused-petitioner filed appeal before Supreme Court which was dismissed, however, the benefit of S. 382-B, Cr.P.C. was granted to accused---Accused-petitioner had contended that every prisoner was entitled for special remission granted by the Federal and Provincial Government from time to time and such remissions were refused to the accused-petitioner by the jail authorities---Prosecution alleged that accused-petitioner committed offence under the Anti-Terrorism Act, 1997, whereby such remissions could not be extended---Validity---Article 25(1) of the Constitution of Islamic Republic of Pakistan provided equal protection to the rights of all the citizens---Forum of trial and the procedure might be different and the punishment under same laws might be more stringent as compared to the other enactments, but after conviction, convict should be governed under the Pakistan Prison Rules and not under the law operating conviction---Petitioner had been refused all kinds of remissions by Jail Authorities vide S. 21-F of the Anti-Terrorism Act, 1997---Article 25 of the Constitution had provided that all the citizens were equally entitled for protection of law---Provision of S. 21-F of the Anti-Terrorism Act, 1997 being ultra vires the Constitution, denial of remissions to the petitioner was discriminatory---Once the benefit of S. 382-B, Cr.P.C. was granted to the convict, benefit of special or ordinary remissions could not be withheld---Refusal of remissions to such a convict would tantamount to deprive the liberty of the convict within the contemplation of Art. 9 of the Constitution, which provided that "no person shall be deprived of life and liberty saved in accordance with law---Constitutional petition was allowed accordingly.

Saleem Raza and 31 others v. The State PLD 2007 Kar. 139 and Hammad Abbasi v. Superintendent Central Adiala Jail Rawalpindi PLD 2010 Lah. 428 rel.

Abdul Hameed Baloch for Petitioner.

Yahya Baloch, D.P.-G. for Respondents.

2018 P Cr. L J 403

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

MUHAMMAD FAROOQ SHAH and another---Petitioners

Versus

The STATE through National Accountability Bureau Balochistan, Quetta---Respondent

C.P. No. 816 of 2017, decided on 25th September, 2017.

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

----S. 9(a)(iv) & (b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Petitioner was arrested for having assets beyond known sources of income---Income and existing assets were investigated by National Accountability Bureau and tabulated which prima facie made out a case of accumulation of assets beyond known sources of income with specification of role on part of petitioner to connect him to offence as charged---No justification was available to allow concession of bail to the petitioner---Constitutional petition was dismissed in circumstances.

Muhammad Hashim Babar v. The State 2010 SCMR 1697 ref.

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

----Ss. 5(da), 9(a)(iv) & (b)---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 497(2)--- Constitutional petition---Bail, grant of--- Benamidar--- Assets beyond means---Vicarious liability---Proof---Petitioner was arrested by National Accountability Bureau for holding assets in his name which were purchased by his father who was principal accused in the reference---Validity---Principal accused accumulated numerous assets which he could not account for through his known sources of income who malafidely and fraudulently held some of the properties in name of petitioner and another person as Benamidars---Prima facie petitioner was not involved directly in all the transactions and his vicarious liability was to be determined by Trial Court after recording of evidence---Case of petitioner required further inquiry in terms of S. 497(2), Cr.P.C.---Bail was allowed in circumstances.

Muhammad Shabbir Rajpoot for Petitioner.

Riaz Akhtar Tareen, Special Prosecutor, NAB for the State.

2018 P Cr. L J 422

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

ABDUL REHMAN alias LALO and another---Petitioners

Versus

Mst. SHANI QAYYUM and another---Respondents

Criminal Revision No. 26 of 2016, decided on 12th June, 2017.

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

----Ss. 6 & 12--- Criminal Procedure Code (V of 1898), S. 173---Jurisdiction of Anti-Terrorism Court--- Determination--- Scope---Jurisdiction of Anti-Terrorism Court for taking cognizance and conducting trial of offences was to be initially determined on the basis of material collected during investigation and surrounding circumstances---Court was to see that ingredients of alleged offence had any nexus with the object of the case; that particular act was act of terrorism or not; that there existed motivation, object, design and purpose behind the act; that act had created sense of fear and insecurity in the public or in a section of public or community or in any sect; and that act had created fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area---All said ingredients amounted to "terror" and as such fell 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, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Dismissal of petition for transfer of case from Anti-Terrorism Court to an ordinary criminal court---Petitioners contended that impugned order was against law and facts and provisions of S. 6 of Anti-Terrorism Act, 1997 were not attracted in the case---Validity---Complainant of the FIR had specifically stated that her daughter was murdered in the name of honour killing by the petitioners---Record showed that ingredients of S. 6, Anti-Terrorism Act, 1997 were not attracted in the present case---Petition was allowed by setting aside order passed by the Trial Court and case was transferred to the court of ordinary jurisdiction.

Khuda-e-Noor v. The State PLD 2016 SC 195 ref.

Sanaullah Ababaki for Petitioners.

Miss Qamar-un-Nisa for Respondent No. 1.

Abdul Karim Malghani, State counsel for the State.

2018 P Cr. L J 450

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

MUHAMMAD HUMAYUN---Petitioner

Versus

The STATION HOUSE OFFICER (SHO) POLICE STATION JINNAH TOWN, QUETTA and another---Respondents

C.P. No. 267 of 2017, decided on 22nd September, 2017.

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

----Ss. 22-A & 22-B---Application for registration of case to Ex-Officio Justice of Peace---Dismissal of such application---Record showed that a criminal case was registered against father of applicant and he was called by Investigating Officer through notice under S. 160, Cr.P.C.---Stance of applicant was that when he appeared before the Investigating Officer, he started beating him severely and thereafter, he moved an application against the Investigating Officer before Judicial Magistrate, who referred him to Civil Hospital for medical checkup---Contents of the said application revealed that the applicant did not mention date and time of the alleged incident, even he had failed to assign as to on which part of his body he sustained injuries---Applicant without approaching the SHO concerned had filed application under S. 22-A, Cr.P.C. before the Ex-Officio Justice of Peace---Circumstances established that applicant failed to point out any illegality or infirmity in the impugned order warranting interference---Constitutional petition was dismissed in circumstances.

Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

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

----Ss. 22-A(6)(i) & 22-B---Application for registration of case before Ex-officio Justice of Peace---Scope---Non-registration of criminal case---Effect---Aggrieved person was supposed to lay information of commission of cognizable offence before SHO---If the SHO refused or failed to receive such information, then doors of office of Ex-officio Justice of Peace were to be knocked---Prior to laying information before SHO concerned, remedy provided under Ss. 22-A & 22-B, Cr.P.C. could not be availed.

Ehsan Rafiq Rana for Petitioner.

Mrs. Noor Jehan Kahoor, Additional P.-G. for Respondents.

2018 P Cr. L J 570

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

GHULAM SHABBIR and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 317 of 2012 and 8 of 2013, decided on 17th July, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account, proof of---Prosecution case was that three accused persons had murdered brother of complainant by firing---Ocular account was furnished by the witnesses, described to witness the incident---Complainant was not an eye-witness of the occurrence---Eye-witness of the case was later on booked in the case as one of the accused, he faced the trial and was convicted---Other eye-witness supported the prosecution case, mentioned the details of the incident, but identified only one accused, however he was unable to assign any specific role to the said accused in commission of the offence---Statement of said witness to the extent of identification of the accused was not corroborated by prosecution witnesses, who were shown to be present near the place of incident and had seen the culprits---Accused persons were not nominated in the FIR as at the relevant time, none of the prosecution witnesses recognized any of the culprits---Test of identification was to be made, on the arrest of the accused persons, which was not done---Circumstances established that prosecution had failed to prove the ocular account of the case beyond shadow of doubt, benefit of which would resolve in favour of accused persons---Accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

[Case-law referred]

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Medical evidence was only supporting evidence, which might confirm the ocular evidence with regard to the receipt of injury, nature of the injury, kind of weapon used in the occurrence, but not to identify the assailants.

[Case-law referred]

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

----Art. 40---Disclosure of accused---Evidentiary value---Disclosure, while in custody of police, was of less value under the provision of Qanun-e-Shahadat, 1984---If nothing in consequence of the disclosure was recovered or discovered then the information so received by itself would not be admissible.

[Case-law referred]

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Scope---Prosecution case was that the accused and his co-accused persons were armed with fire arms---Kalashnikov along with five rounds were recovered from the residential room of accused---T.T. pistol along with four rounds were recovered from the possession of co-accused---T.T. pistol along with one round from the possession of other co-accused were recovered---Record showed that ocular account and the disclosures of accused recorded while in custody were not believed, accused persons, in circumstances, could not be convicted merely on the basis of said recoveries, which were only corroborative piece of evidence---Alleged recoveries were inconsequential.

[Case-law referred]

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery---Benefit of doubt---Prosecution case was that unknown persons on motorcycle arrived at the site and committed murder of the deceased---Witness/police official stated that someone came and handed over the motorcycle to him---Particulars of said person and connection of said person with the motorcycle were not mentioned in the statement of said official witness---Person who handed over the motorcycle was not produced as witness before the Trial Court---Investigating Officer had stated that the motorcycle was recovered from a shop, but neither he disclosed the name of the shop or that of the shopkeeper---Both the witnesses contradicted each other regarding recovery of the motorcycle, which created doubt in its veracity---Said evidence was unable to establish the nexus between the accused persons and the motorcycle and its use in the commission of offence---No reliance could be made on the recovery of the motorcycle.

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

----Ss. 302 & 34----Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in dispatching crime empties and weapons to the Laboratory---Effect---Record showed that two crime empties and five led were recovered on 14.7.2010, the day of incident---One Kalashnikov and two pistols were recovered from the accused persons on 13.8.2010---Said recoveries were not sent to the Fire Arms Examination Unit for analysis and remained in the police custody till 20.9.2010---No explanation was offered for not dispatching the crime weapons to the Examination Unit on their recovery but with delay---Prosecution did not tender any explanation about their safe custody during the said period---Report about pistols only showed that those were in working condition, but were not matched with the crime empties--- Sending of crime empties and the weapons of offence together after delay cast doubt and diminished legal value of the report.

[Case-law referred]

(g) Criminal trial---

----Benefit of doubt----Principles---If there was a single circumstance, which created doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

[Case-law referred]

Syed Ayaz Zahoor for Appellants (in Criminal Appeal No. 317 of 2012).

Najam-ud-Din Mengal for Appellants (in Criminal Appeal No.8 of 2013).

Mrs. Noor Jehan Kaboor, Additional Prosecutor-General for the State.

2018 P Cr. L J 617

[Balochistan]

Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ

KHAIR MUHAMMAD alias KHARIO and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 285 and Murder Reference No. 13 of 2014, decided on 12th September, 2017.

(a) Criminal trial---

----Witness, statement of--- Contradictions in the statements of witnesses---Effect---Contradictions in the statements of witnesses being minor in nature were not sufficient to make the case of prosecution doubtful.

2009 SCMR 471 and 2013 PCr.LJ 692 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account corroborated by medical evidence---Complainant (deceased) then alive, registered the case wherein he had alleged that accused visited him for his treatment of piles---Deceased demanded money so as to purchase raw material to prepare medicines---Next morning, deceased was confronted by the accused for demanding money for medicines and made firing at him, which caused serious injuries to deceased---Sons of deceased came out from their house and saw the accused with pistol---Deceased told the story of assault by the accused to his sons---Deceased was shifted to hospital where he succumbed to injuries---Ocular account was furnished by the sons of deceased---Ocular account including the statements of sons of deceased and the contents of fard-e-bayan were in line with the medical and recovery of empty, blood stained articles and other evidence available on record---Prosecution witnesses were cross-examined at length, but nothing could be unearthed showing that they had involved the accused falsely on the basis of previous enmity or personal grudge or at the instance of someone else---No reason was available to discard the evidence produced by the prosecution---Ocular account furnished by the sons of deceased could not be discarded for being relatives of the deceased---Case was not result of sudden provocation but a preplanned and premeditated murder, thus no mitigating circumstances for lesser punishment were available---Circumstances established that Judgment passed by Trial Court, in circumstances did not suffer from any illegality, irregularity or misreading and non-reading of evidence---Appeal against conviction and sentence was dismissed in circumstances.

2000 SCMR 163 and 1994 SCMR 1 rel.

(c) Criminal trial---

----"Motive" and "intent"---Distinction and scope---Motive is the state of mind of accused, which can be formed even at the spur of moment, therefore, absence of motive is of no consequence---Motive is impulse and desire that induces criminal action on the part of the accused---Motive is distinguished from intent, which is the design with which the act is done---Absence of motive can not be helpful in presence of unimpeachable ocular evidence.

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

----S. 302(b)---Qatl-i-amd---Sentence, quantum of---Object and scope---Normal sentence in case of qatl-i-amd was death and the court while awarding the same was not under obligation to record any reason---While awarding a lesser sentence, court had to record reasons, equally to prove the offence entailing extreme penalty of death, every possible care and caution had to be adopted---When the offence was proved against the accused, the court had to award the maximum sentence for that offence, even if it was a capital punishment.

2013 SCMR 1314; 2015 SCMR 856; PLD 2001 SC 475 and PLD 2015 Lah. 512 rel.

(e) Criminal trial---

----Sentence---Meaning---Consequence which flows after conviction can be looked as sentence.

(f) Criminal trial---

----Punishment---Objects.

(g) Criminal trial---

----Sentence---Quantum---Vital elements enumerated.

Muhammad Akram Shah for Appellant (in Criminal Appeal No.285 of 2014).

Ameer Hamza Mengal, Deputy Prosecutor-General (DPG) for the State (in Criminal Appeal No. 285 of 2014).

Ameer Hamza Mengal, Deputy Prosecutor-General (DPG) for Petitioner (in Murder Reference No. 13 of 2014).

Muhammad Akram Shah for the State (in Murder Reference No.13 of 2014).

2018 P Cr. L J 666

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

ZAKIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 22 of 2016, decided on 24th October, 2017.

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

----S. 13(d)---Criminal Procedure Code (V of 1898), S. 103---Recovery of unlicensed weapon---Search to be made in presence of witnesses---Benefit of doubt---Prosecution case was that in pursuance of a case registered under S. 324, P.P.C., police raided a house and accused was found in possession of one Kalashnikov with fifteen cartridges---Neither the accused was nominated nor wanted in the said case---Accused was not owner of the house in question---Facts and circumstances of the case showed that brother of the accused was nominated and wanted in the said case and the house in question also belonged to him---Accused stated that due to absconsion of his brother, who was nominated and wanted in the said case, he had been falsely involved in the case---Said plea of accused was not only plausible but seemed nearer to the truth---Simpliciter possession of arms and ammunition did not constitute an offence under S. 13(d) or (c) of the Arms Ordinance, 1965---Such possession would become an offence only when the possessor of the same failed to produce permit or license---Nothing was available on record to suggest that at the time of alleged recovery, the accused was asked for production of the license or permit---Murasila as well as the statement of accused, recorded under S. 342, Cr.P.C. were silent in that respect---Mandatory provisions of S. 103, Cr.P.C. having been violated, alleged recovery of Kalashnikov, without joining disinterested persons inspite of availability, was doubtful and no reliance could be placed upon it especially, when ulterior motives had been alleged by the accused---Circumstances established that prosecution had failed to establish its case against accused beyond reasonable doubt---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 103---Search to be made in presence of witnesses---Object---Object of compliance of S. 103, Cr.P.C. was to ensure that recovery was effected honestly and fairly so as to exclude the possibility of false implication and fabrication---Section 103, Cr.P.C. was designed to provide safeguard against police excesses.

Syed Ayaz Zahoor and Ehsan Rafique Rana for Appellant.

Abdul Mateen, Deputy Prosecutor-General for the State.

2018 P Cr. L J 726

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

AZEEM KHAN and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 183 and Murder Reference No. 12 of 2015, decided on 20th November, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Prosecution case was that complainant and his cousins were attacked by the accused and co-accused---Accused with pistol fired upon cousin of complainant, who sustained injuries and was taken to the hospital, where he succumbed to the injuries---Motive behind the incident was old enmity---Ocular account was furnished by witnesses including complainant and his cousin and narrated the incident as in the FIR---Eye-witness corroborated the version of complainant and his cousin and they had taken the injured to hospital, where injured succumbed to the injuries---Ocular evidence furnished by three witnesses had not been shaken during the lengthy cross-examination with regard to firing by the accused---Ocular evidence had been corroborated by the Medical Officer, who produced the death certificate of the deceased which indicated gunshot wound at the head of deceased by means of bullet and injuries were found fresh---Circumstances suggested that there was no doubt with regard to presence of eye-witnesses at the place of incident at the relevant time---Co-accused was charged for sharing common intention---Admittedly, co-accused was empty handed and if he had any intention, he would have been equipped with weapon---Prosecution had failed to prove instigation on the part of co-accused---No overt act had been assigned to co-accused nor there was any material on record to show that co-accused shared common intention with the accused---Ocular evidence though was corroborated by the medical evidence, however, prosecution had not been able to prove motive, which was a mitigating circumstance for reduction of sentence---Conviction of accused, in circumstances, was maintained, however, sentence of death was converted into life imprisonment---Appeal was dismissed to the extent of accused with said modification; however, prosecution had failed to prove its case against the co-accused beyond any shadow of doubt, benefit of which would resolve in his favour---Appeal to the extent of co-accused was allowed in circumstances and he was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Hassan v. The State 1969 SCMR 455; Hasan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49; Maqsood Pervez alias Billa and another v. The State 2000 SCMR 1859 and Ghulam Haider and others v. Muhammad Nadeem Sajid and another 2006 SCMR 1251 rel.

(b) 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---Scope---Accused were arrested on the day of occurrence and during their arrest, a pistol 30-bore along with magazine and nine live cartridges were recovered from the accused---Empties secured from the place of incident and crime weapon was sent to Forensic Science Laboratory---Positive Report of crime weapon, recovered from the accused and crime empties secured from the place of incident matched with the crime weapon---Defence had objected that incriminating articles were sent with delay, therefore, had lost its admissibility---Record transpired that incriminating articles were sent after sixteen days of the incident and received after two months of its dispatch---In presence of truthful and reliable ocular evidence, the report of Forensic Science Laboratory with regard to crime weapon recovered from the accused and crime empties secured from the place of incident could not be treated fatal, as no question had been raised by the defence with regard to tampering or manipulating of the report---Circumstances established that report of Forensic Science Laboratory had corroborated the case of prosecution.

2003 SCMR 647 ref.

Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Scope---Testimony of closely related witness---Reliance---Complainant and eyewitnesses were related to the deceased---Defence objected that three witnesses of ocular account were related to deceased, therefore, in absence of independence corroboration, conviction of the accused persons could not be sustained---Validity---Record showed that the evidence of three ocular witnesses were consistent, which had been corroborated by the medical evidence, recovery of crime weapon and positive report of matching the crime empties with the pistol recovered from the possession of accused---Said witnesses, in circumstances, were natural and seem to be possible eye-witnesses of the case---Evidence given by related witnesses were not impeachable and thus could not be discarded merely on the ground that they were related to the deceased.

2003 SCMR 581 and Muhammad Aslam v. The State 2012 SCMR 593 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Mitigating circumstance---Effect---Sentence, reduction in---Motive behind the occurrence was stated to be previous enmity between the parties---No such enmity/motive had been established by the prosecution---Statements of prosecution witnesses were silent with regard to motive, therefore, a case of mitigation in the sentence of accused was made out---Conviction was maintained, sentence of accused from death was altered to imprisonment for life in circumstances.

Ahmed Khan v. Abdul Rasheed and others 2008 SCMR 378 and Muhammad Yaseen v. The State 2011 SCMR 905 rel.

Muhammad Aslam Chishti and Muhammad Akram Shah for Appellants (in Criminal Appeal No. 183 of 2015).

Shaukat Ali Rakhshani for the Complainant (in Criminal Appeal No. 183 of 2 015).

Yahya Baloch, DPG for the State (in Criminal Appeal No. 183 of 2015).

Yahya Baloch, DPG for the State/Appellant (in Murder Reference No. 12 of 2015).

Muhammad Aslam Chishti and Muhammad Akram Shah for Respondent (in Murder Reference No. 12 of 2015).

2018 P Cr. L J 778

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD AKBAR alias AKBAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 34 of 2015, decided on 18th December, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Prosecution case was that the accused and co-accused persons made firing upon father and brother of the complainant with firearms and severely injured them---Injured were taken to the hospital for treatment, but they succumbed to the injuries---Ocular account of the occurrence was furnished by two witnesses, claiming themselves to be eye-witnesses of the incident---Eye-witness, brother of the complainant deposed that at about 8.00 a.m. his father and brother went on a motorcycle, he also went behind them and had seen that accused and his co-accused boarding a motorcycle went behind them---Accused persons caused injuries through pistol to his father and brother, due to which, his father died at the spot, while his brother was taken to the hospital---Said witness had mentioned the presence of accused, his co-accused and 4/5 other persons---Witness went to his house and informed his mother about the incident---Testimony of the said witness was tested through lengthy cross-examination, but nothing had come on record favouring the accused and had confirmed that accused was the real culprit, who made firing upon the deceased and committed double murder---Second eye-witness deposed that he had seen that accused took out pistol and made firing upon victims, his brother in law and nephew---Said witness identified the accused in the court---Admittedly, said eyewitness was a minor but at the time of cross-examination, he replied the questions correctly, which established the soundness of his mind---Statement of said witness could not be thrown aside merely on the ground of his being minor of eleven years, his statement was enough to establish the charge against the accused---Nothing on record showed that said witness was tutored by his elders---Statement of child witness was corroborated by the circumstantial evidence---Statements of eyewitnesses remained unshaken with regard to departure of both the deceased from their house and of being chased by the accused persons and firing upon them with firearm---Both the said witnesses were tested through lengthy cross-examination, but they remained firm on all counts and the defence failed to give any jolt or shake their testimonies---Said witnesses correctly narrated the date, time, the place of occurrence and the manner in which the accused party arrived at the site and caused murder of both the deceased---Ocular testimony was corroborated by the medical evidence, wherein it was opined that the deceased had received multiple injuries on their persons by firearm---Parties were known to each other previously and the question of mistaken identity of the real culprits did not arise as the occurrence took place in the broad day light---Attending circumstances of the case suggested that it was hard to believe that witness would substitute the accused for the real culprits, who had committed murder---Circumstances established that defence had failed to point out any material illegality, irregularity or infirmity in the case of prosecution, warranting interference---Appeal against conviction was dismissed in circumstances.

Muhammad Anwar v. State 1985 PCr.LJ 2500; Muzammil Shah v. State 1991 MLD 1944; Usmanullah v. Sharfullah and others v. The State 2016 PCr.LJ 1558; Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allah Ditta v. The State PLD 2002 SC 52 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that the accused and co-accused persons made firing upon father and brother of the complainant with firearms and severely injured them---Injured were taken to the hospital for treatment, but they succumbed to the injuries---Motive behind the occurrence was the matrimonial dispute between sister of complainant and her husband/co-accused---Ocular account was furnished by the prosecution in shape of circumstantial and direct evidence---Complainant reiterated the contents of his fard-e-bayan and narrated the story with regard to double murder of his father and brother by the accused persons---Statement of complainant established the motive behind the occurrence in respect of worse matrimonial relations between his sister and her husband/co-accused---Mother of complainant stated in line to the statement of complainant---Said witness deposed that on the day of occurrence, accused and co-accused came to her house and accused having a pistol in his hand, murdered her son and husband---Statements of complainant and his mother had fully corroborated the direct and medical evidence as well as the motive behind the occurrence---Circumstances established that accused had failed to create any dent in the prosecution---Appeal against conviction was dismissed in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness, testimony of---Reliance---Scope---Defence objected that only interested witnesses were produced by the prosecution and the case of prosecution was lacking independent corroboration---Mere relation of witnesses with the deceased was no ground to discard their testimonies, if their evidence was found entirely independent and truthful---Testimony of such eye-witnesses without looking for any other corroborative evidence, would alone be sufficient to establish the charge.

(d) Criminal trial---

----Witness--- Evidence of related/interested witnesses--- Scope---Evidence of related witnesses who were not found inimical and were confidence inspiring would not need any corroboration.

Tahir Hussain Khan for Appellant.

Muhammad Yahya Baloch, D.P.-G. for the State.

2018 P Cr. L J 797

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

STATE through Prosecutor-General Accountability, NAB---Appellant

Versus

GHULAM MUSTAFA RANDHAWA and another---Respondents

Criminal Ehtesab Appeal No. 17 of 2015, decided on 13th November, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv), 14(a) & 32--- Qanun-e-Shahadat (10 of 1984), Art. 117(1)---Assets beyond known sources of income---Appreciation of evidence---Appeal against acquittal---Pecuniary advantages---Onus to prove---Authorities were aggrieved of acquittal of accused from Trial Court---Validity---Trial Court, while resolving the point with regard to maintaining of bank account of Rupees 103,627,531/- by accused instead of shifting burden of proof on accused to justify such amount in his account, to the contrary, applied Art. 117(1) of Qanun-e-Shahadat, 1984 that burden of proof was on the prosecution to prove its case against accused---Trial Court failed to ask accused to justify such huge amount in his account and instead gave irrelevant findings and unnecessary lengthy comments with regard to determination of huge amounts---Accused failed to justify maintaining of account worth millions of rupees and under such circumstances, provisions of S. 14 of National Accountability Ordinance, 1999 could be applied which were very much relevant---Trial Court, while dealing/passing judgment in question ignored principal objectives with which provisions of S. 14 of National Accountability Ordinance, 1999 were into the statute---High Court set aside judgment and remanded the matter to Trial Court for decision of reference afresh---Appeal was allowed accordingly.

Faizullah Khan v. The State 1972 SCMR 672 rel.

Ewaz Zehri, Special Prosecutor NAB for Appellant.

H. Shakeel Ahmed for Respondents.

2018 P Cr. L J 837

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Zaheer-ud-Din Kakar, J

MUHAMMAD ALAM---Applicant

Versus

The STATE---Respondent

Criminal Bail (Jail) Application No. 145 of 2017, decided on 13th December, 2017.

(a) Anti-Money Laundering Act (VII of 2010)---

----Ss. 3, 4, 20, 39 & Sched.---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 13, 14 & 15---Possession of 1290 grams of heroin and foreign currency---Predicate offence---Jurisdiction---Scope---Special Court Control of Narcotic Substances admitted accused for bail for offences under Control of Narcotic Substances Act, 1997 but refused bail for offences under Anti Money Laundering Act, 2010---Validity---Section 20 of Anti Money Laundering Act, 2010 envisaged that the Court of Session established under the Criminal Procedure Code, 1898 would, within territorial jurisdiction, exercise jurisdiction to try and adjudicate the offence(s) punishable under the Anti Money Laundering Act, 2010 , however, proviso (a) of S. 20 of the said Act showed that if the predicate offence was triable by any court other than the Court of Session, then the offence of money laundering and all matters connected therewith or incidental thereto would be tried by the Court trying the predicate offence(s)---As the main offence against the accused fell within the ambit of Control of Narcotic Substances Act, 1997, therefore, being predicate offence, the same was triable by the Special Judge, Control of Narcotic Substances---Control of Narcotic Substances Act, 1997 also fell within the meaning of "predicate offences" as mentioned in the Schedule of Anti-Money Laundering Act, 2010---Section 39 of Anti-Money Laundering Act, 2010 had overriding effect and said provision would be in addition to, and not in derogation of, which indicated that where the predicate offence was triable by any Court, the offence of Anti-Money Laundering Act, 2010 would be cognizable by that Court---Court under Control of Narcotic Substances Act, 1997 was competent to adjudicate matter in the present case---Offence under Ss. 3 & 4 of Anti-Money Laundering Act, 2010 not falling within the prohibitory clause of S. 497, Cr.P.C., therefore, the bail was granted to accused.

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

----S. 497---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Bail, grant of---Prohibitory clause of S. 497, Cr.P.C.---Scope---Accused had already been admitted to bail in the connected offence under Control of Narcotic Substances Act, 1997 by Anti-Narcotic Court---Offence under Ss. 3 & 4 of Anti-Money Laundering Act, 2010 not falling under the prohibitory clause of S. 497, Cr.P.C.---Accused was granted bail.

(c) Anti-Money Laundering Act (VII of 2010)---

----S. 20(1)(a)---Predicate offences---Scope---Offences which were registered under the Control of Narcotic Substances Act, 1997, Anti-Terrorism Act, 1997 and National Accountability Ordinance, 1999 are predicate offences.

Miss Afshan Memon for Applicant.

Shams-ud-Din Achakzai, Special Prosecutor, ANF for the State.

2018 P Cr. L J 866

[Balochistan]

Before Abdullah Baloch, J

ALI BAKHSH alias ALI DOST---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 117 of 2015, decided on 30th October, 2017.

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

----Ss. 324 & 337-F(v)--- Attempt to commit qatl-i-amd, causing Hashimah---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused had made firing through T.T. pistol upon the cousin of the complainant and caused serious injuries to him---Motive for the occurrence was an old enmity of harsh words exchanged between the accused and victim a month earlier---Case was registered by the complainant, who in his fard-e-bayan had mentioned that he was informed by his uncle through mobile phone that his son had been injured by the accused---Complainant appeared in the court and made some improvements and contradictions to his earlier deposition---Complainant in his examination-in-chief had failed to mention the source of information; he also failed to mention the exact time of occurrence as well as the time when he was informed about the occurrence---Record was silent as to why the FIR was not lodged either by the injured or by his father, when allegedly, the father of injured had reached at the spot and taken the injured to hospital prior to the complainant---Such fact created doubt about the presence of father of victim at the place of occurrence---Complainant, admittedly, did not witness the crime directly---Occurrence allegedly had taken place at about 9.40 a.m. and FIR was lodged at 10.30 a.m.---Complainant in his cross-examination had admitted that he reached hospital at 9.40 a.m. and thereafter went to Police Station at about 10.55 a.m.---If the complainant reached Police Station at about 10.55 a.m. for lodging FIR, then as to how the FIR was lodged prior to his arrival at Police Station and submitting his fard-e-bayan for lodging the FIR---Complainant remained silent about the motive part of the occurrence in his court statement, which also created doubt---Prosecution witness had disclosed the fact that he had not witnessed the crime directly and at the time when he reached at the place of occurrence, the victim was already in injured condition and he along with the father of injured took him to the hospital---Statement of another prosecution witness was similar to the statement of prosecution witness and said witness could not justify his presence at the place of occurrence---Injured witness contradicted the statements of all the prosecution witnesses with regard to the date of occurrence---Prosecution had not furnished any explanation as to why statement of injured had been recorded after delay of more than forty five days---Admittedly, all the witnesses made contradictory statements to each other and made certain dishonest improvements in their depositions regarding their arrival at the scene of occurrence and shifting the injured to hospital---Said witnesses could not justify their presence at the place of occurrence and it appeared that they had given false statements being closely related with the victim---Prosecutions had failed to produce any independent witness, thus, the case of prosecution lacked independent corroboration---No medical reports from hospital were brought on record to ascertain that injured got treatment from the said hospital or remained under treatment for a long time---Injured did not mention as to how many injuries were caused to him---Such glaring lacunas had broken the chain of evidence---Circumstances established that prosecution had failed to prove the charge against the accused beyond any shadow of doubt, benefit of which would be extended to the accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, causing Hashimah---Appreciation of evidence---First Information Report was lodged by a stranger---Effect---In presence of victim, who was in senses and his father, who reached at the spot prior to the complainant and took the victim to hospital along with other eye-witnesses, the registration of FIR by the stranger, was not justifiable.

Naseema Bibi v. The State 2008 PCr.LJ 613 and Sikandar Hayat v. The State 2003 PCr.LJ 310 rel.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, causing Hashimah--- Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Police Official/witness stated that on the pointation of accused, a licensed pistol was recovered from the road side bushes with empty magazine on 29.9.2013---Another Police Official/witness stated that on 15.8.2013, he along with Investigating Officer visited the site and took two empties into possession---Investigating Officer stated that two empties were sent to Forensic Science Laboratory for chemical analysis on 1.10.2013---Parcels for Forensic Science Laboratory were received by Ballistic Expert on 10.10.2013 and report was prepared on 25.11.2013 after lapse of 1-1/2 months of its receipt and after three months of the occurrence---Report showed that T.T. pistol with five .30-bore live cartridges and two 7.62MM-bore empties were found, which were not at all case property, therefore such, Forensic Science Laboratory's report had no evidentiary value.

Shehbaz Tariq for Appellant.

Abdul Karim Malghani, State counsel for the State.

2018 P Cr. L J 914

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

KHAIR MUHAMMAD SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 95 of 2016, decided on 25th November, 2017.

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

----Ss. 320, 279 & 427---Qatl-e-Khata, rash driving on public way and mischief causing damage---Appreciation of evidence---Benefit of doubt---Accused was charged for causing death of deceased due to rash and negligent driving---Prosecution case was that accused was driving oil tanker in a rash and negligent manner, thereby endangering human life and safety of others and while driving so, he hit the deceased from wrong side and caused his death---Record showed that case was registered on the complaint of uncle of the deceased---Admittedly, neither complainant was eye-witness of the occurrence nor he had disclosed his source of information while lodging the FIR as well as in his statement before court---Complainant reached at the spot when accident had already taken place, as such, he had not seen the accident---Complainant, in such circumstance could not say that the accident took place due to negligence and carelessness of accused and deceased was hit from wrong side---Nothing was available on record on the basis of which, it could be ascertained that the accident in question was the result of negligence on the part of accused---Prosecution case was that the deceased was driving motorcycle at the time of accident, which was fully loaded with stationery articles---Possibility that the accident in question occurred due to negligence on the part of deceased, could not be ruled out---Circumstances established that prosecution failed to prove its case beyond any shadow of doubt, the benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to prove its case against the accused beyond doubt---Accused would be presumed to be innocent until the case was fully proved against him---If there was a room for doubt, benefit thereof was to go to the accused.

Khushal v. State 1971 SCMR 357 rel.

(c) Criminal trial---

----Conviction---Scope---Conviction could not be awarded merely on the basis of presumptions, surmises and conjectures.

Wali Muhammad Nasir and Ms. Afshan Memon for Appellant.

Saeed Ahmed Kakar, State counsel.

2018 P Cr. L J 954

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MOHIBULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Application No. 506 of 2017 in Criminal Revision Petition No. 126 of 2016, decided on 5th December, 2017.

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

----S. 517---Order for disposal of property regarding which offence committed---Claim for ownership of vehicle allegedly used in offence---Applicant, claimed himself to be owner of confiscated motorcycle, and prayed that motorcycle in question be handed over to him---Validity---Applicant along with co-accused was booked in a criminal case registered under Ss. 337-H(2), 353 & 34, P.P.C.---Motorcycle of the applicant was taken into custody by the Police---Applicant along with co-accused were convicted by the Judicial Magistrate and the motorcycle of applicant was ordered to be confiscated in favour of the State---Conviction and sentence of the applicant was upheld by the appellate court---Applicant along with co-accused were acquitted by the High Court, without passing a specific order in respect of the motorcycle---Effect---Record showed that applicant was acquitted of the charge while extending benefit of doubt---Admittedly, while passing the acquittal judgment, no specific order with regard to the seized property was passed, but the acceptance of revision petition meant that the same was allowed in toto---After setting aside the impugned judgments, the acquittal of the applicant was unconditional---After winning acquittal, the applicant could not be deprived of logical consequences of his acquittal order---Admittedly, neither the motorcycle in question was used in the commission of the alleged offence nor the same was stolen property--- Motorcycle was taken into custody by the police from the possession of the applicant---Acquittal of accused of the charge, entitled him to all reliefs including the release of his properties seized at the time--- Application was allowed in circumstances.

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

----S. 522-A--- Power to restore possession of movable property---Scope---If property was not proved to be the subject-matter of an offence, same was to be restored to the person from whom it had been taken.

Jalal Khan v. State PLD 1975 Lah. 45 rel.

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

----Ss. 517 & 520---Application for restoration of property under S. 517, Cr.P.C.---Limitation---Proceedings under Ss. 517 & 520, Cr.P.C. being not appeal or revision but that of special nature, no period of limitation was prescribed by law for moving such application.

(d) Criminal trial---

----Benefit of doubt---Acquittal---Scope---Prosecution was duty bound to establish its case beyond all reasonable doubts---If prosecution failed to do so, the accused would be entitled to acquittal---Such acquittal would be honourable, even if it was the result of benefit of doubt.

Muhammad Aslam v. Government of N.-W.F.P. 1998 SCMR 1993 rel.

Attaullah Langov for Petitioners.

Yahya Khan, Deputy Prosecutor-General for the State.

2018 P Cr. L J 999

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SADULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 392 and Criminal Revision No. 43 of 2016, decided on 25th August, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused and co-accused persons armed with pistols fired at brother of complainant who succumbed to the injuries---Ocular account was furnished by the witnesses including complainant---Prosecution witnesses had corroborated the statement of complainant on all counts---Eye-witnesses had shown their presence at the time and place of occurrence and also implicated and attributed specific role to the accused, who was equipped with pistol and fired---Statements of eye-witnesses were supported by the medical evidence and recovery of blood-stained clothes, blood-stained earth and recovery of crime empties from the scene of occurrence and also supported by the positive Report of Forensic Science Laboratory---Circumstances established that accused had failed to point out any illegality or irregularity in the impugned judgment passed by the Trial Court, which did not warrant interference---Appeal against convictions and sentences was dismissed in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Medical Officer, who examined the dead body of the deceased mentioned cause of death due to injury on major organ (brain) by means of firearm---Unnatural death of the deceased was not disputed in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Common intention---Scope---Eye-witness had proved that the accused in furtherance of common intention, equipped with arms were present at the place of occurrence, waiting for the arrival of deceased who was to come there for the hearing of his case---All the accused persons were gathered at the place of occurrence and on the arrival of the deceased, fired at him and made aerial firing to disperse the people present over there---Such conduct of the accused persons showed their common intention and pre-planning to kill the deceased.

Ali Imran v. State PLD 2006 SC 87; Muhammad Akram v. The State 2007 SCMR 1539; Shaukat Ali v. The State PLD 2007 SC 93 and Afzal v. State 2007 SCMR 315 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witnesses---Scope---Defence contended that only the interested witnesses were produced and the case of prosecution lacked independent corroboration---Testimony of witness could not be disbelieved solely on the ground of being related to the complainant---Court had to see the truthfulness and credibility of such witness---Eye-witnesses were brother and cousins of the deceased; it did not appeal to the logic, in circumstances that the real blood relations would let free the culprits, who had committed the murder of the deceased and involve innocent persons due to some previous dispute---No question for mistaken identity was possible---Mere relationship of witness with any of the parties would not dub him as an interested witness.

Ijaz Ahmed v. The State 2009 SCMR 99 and Latif v. State 2008 SCMR 1106 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Petition for enhancement of sentence---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Scope---Complainant had contended that Trial Court had taken lenient view while recording sentence of life imprisonment to the accused instead of death penalty---Validity---Admittedly, deceased was killed by the accused persons with common intention but the prosecution by itself had attributed the main role of killing the deceased by firing of absconding accused---Said circumstances constituted mitigating circumstance and the Trial Court had rightly convicted the accused for life imprisonment---Revision petition for enhancement of sentence of accused was dismissed in circumstances.

Khalil Ahmed Panezai for Appellant.

Habibullah Gul, Additional P.-G. for the State.

Muhammad Akram Shah for the Complainant.

2018 P Cr. L J 1032

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

HASSAN GUL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 223 and Murder Reference No. 16 of 2015, decided on 15th November, 2017.

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

----Ss. 302(b), 324, 337-A, 337-D, 337-F & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, ghayr-jaifah, common intention---Appreciation of evidence---Medical evidence---Scope---Medical Officer had found multiple bullet injuries on the person of deceased---Unnatural death of the deceased was not disputed by the defence---Medical Officer also examined the injured and found three injuries on his person and opined that the said injuries were caused with fire arms---Nature of injuries received by injured, in circumstances, could not be said to be self-inflicted when even the defence had not disputed the same to be self-inflicted or old injuries.

Farooq Khan v. State 2008 SCMR 917 and Nallamsetty Yanadaiah v. State of Andra Pradesh 1994 SCMR 588 rel.

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

----Ss. 302(b), 324, 337-A, 337-D, 337-F & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, ghayr-jaifah, common intention---Appreciation of evidence--- Sentence, reduction in--- Mitigating circumstances---Ocular account---Proof---Prosecution case was that the accused along with co-accused armed with Kalashnikovs made firing upon the complainant party, due to which one person died at the spot and other received bullet injuries---Ocular account was furnished by the complainant and injured---Complainant of the case appeared as witness and recorded his statement, which was in line with his earlier deposition contained in the fard-e-bayan---Complainant had correctly mentioned the time, date, the place of occurrence and the manner in which the alleged occurrence had taken place---Complainant had correctly identified the accused in the court as assailant, who along with co-accused made firing upon the deceased and injured---Defence despite lengthy cross-examination had failed to give dent, jolt or shaken the testimony of the complainant---Injured had recorded his statement in line with statement of complainant and had correctly identified the accused in the Trial Court---Presence of injured witness could not be rebutted in any way as he had received three bullet injuries on his person, thus his presence at the relevant time was natural---Injured was cross-examined at sufficient length, but he remained firm in his deposition and nothing advantageous or beneficial had come on record favouring the defence---Occurrence had taken place at about 4.00 p.m. in day light; the accused was resident of the same vicinity and had a landed dispute as well as litigations were pending between the parties---Prudent mind would not accept that the accused had been mistaken by the witnesses---Defence objection that statement of complainant did not ring true as he was not injured despite sitting in the vehicle, which faced indiscriminate firing with automatic weapons by four accused persons---Not necessary that all the persons sitting in the vehicle would receive bullet injuries---Even otherwise, the statement of complainant had been corroborated by the injured witness, which was enough to establish the charge against the accused---Prosecution had succeeded in proving the charge against the accused, however, Trial Court had treated the accused harshly while awarding capital punishment by ignoring the fact that admittedly landed dispute existed between the parties---Said fact constituted mitigating circumstances, thus sentence of accused was reduced from death to imprisonment for life.

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

----Ss. 302(b), 324, 337-A, 337-D, 337-F & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, ghayr-jaifah, common intention---Appreciation of evidence---Interested witness, testimony of---Scope---Defence objected that prosecution had produced only interested witnesses, thus case lacked independent corroboration---Record showed that all the prosecution witnesses were not interested witnesses---Injured was most natural witness of the occurrence, who had received multiple bullet injuries on his person---Injured witness faced life threatening attack and survived death, thus in such circumstances, it would not be justified to declare him as interested witness or to believe that he might have involved innocent persons instead of real culprits, who made extreme attempt to take his life---Evidence of witnesses could not be discarded from consideration on ground of their relationship with the complainant or deceased---Testimony of the prosecution witnesses was found independent and truthful, therefore, their deposition, which corroborated each other on all material counts, were sufficient to establish the charge.

(d) Criminal trial---

----Witness--- Related witness--- Testimony of--- Reliance--- Scope---Evidence of related witnesses who were not found inimical towards accused and were confidence inspiring would hardly need any corroboration.

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

----Ss. 302(b), 324, 337-A, 337-D, 337-F & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, ghayr-jaifah, common intention---Appreciation of evidence---Minor discrepancies in the statements of witnesses---Effect---Minor discrepancies in the present case, which were not substantive enough to create reasonable doubt in the case of prosecution about the involvement and guilt of the accused could not be discredited.

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

----Ss. 302(b), 324, 337-A, 337-D, 337-F & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, ghayr-jaifah, common intention---Appreciation of evidence---Crime weapon---Non-recovery of---Effect---Record showed that accused remained absconded for a long period and was arrested in another case and was investigated in jail---Accused during the intervening period had got sufficient time to conceal the crime weapon, besides, the recovery of crime weapon could be only a supporting piece of evidence---Prosecution had proved its case independently through direct ocular evidence---Mere non-recovery of crime weapon was no ground to discredit or disbelieve the entire prosecution case.

Sikander Teghani alias Muhammad Teghani v. The State 2016 YLR 1098 and Muhammad Nadeem alias Deemi v. State 2011 SCMR 872 rel.

Abdul Haq Kasi and Shehnaz Rana for Appellant.

Habibullah Gul, Additional P.-G. for the State.

Muhammad Akram Shah for the Complainant.

2018 P Cr. L J 1071

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

KHUDA-E-NOOR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 172 of 2016 and Criminal Jail Appeal No. 47 of 2016, decided on 2nd October, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that the accused persons along with co-accused persons assaulted upon the complainant party, made firing, due to which daughter of complainant died at the spot---Motive behind the occurrence was that complainant had obtained divorce from the father of deceased, which fact annoyed the accused party---Ocular account was furnished by the complainant and her two daughters, which was further supported by the disclosure of co-accused about the murder of deceased---Complainant lodged FIR by means of filing application under S. 22-A, Cr.P.C.---Complainant had explained the delay caused in registration of FIR---Complainant specifically nominated the accused persons and their arrival in her house---Complainant had stated that she became unconscious and after becoming normal she found her daughter in pool of blood---Statement of complainant showed that at the time of occurrence all the witnesses and accused persons were present at the place of occurrence and murder of deceased was result of their common intention---Sister of deceased, twelve years old, appeared as a witness and furnished the ocular account---Presence of said witness was shown in the statement of complainant and was not denied by the defence---Said witness attributed specific role and commission of offence to the accused persons---Statement of said witness with regard to firing of two bullets on deceased was confirmed from the postmortem report---Daughter of complainant/witness appeared and confirmed the presence of accused persons equipped with arms at the place of occurrence---Record showed that statements of all three eyewitnesses corroborated each other in respect of presence of accused persons at the place of occurrence, the manner in which occurrence took place and the motive behind the occurrence---Testimonies of said eye-witnesses were not only trustworthy, but deserved appreciation---Ocular account of prosecution case was further supported by disclosure of co-accused recorded before the Investigating Officer, wherein he had admitted his guilt---Disclosure of said co-accused showed that he came to know that deceased had illicit relationship with a person and he discussed the same with his father---Accused/father of co-accused directed the co-accused to kill his sister as the matter was that of honour---Co-accused admitted the commission of offence along with his father and brother---Co-accused, though made a unsuccessful attempt to deviate from his disclosure while recording his statement on oath under S. 340(2), Cr.P.C., wherein he specifically admitted the commission of offence by himself to save his father from the conviction---Said confession of co-accused was not only in conflict with his disclosure, but also negated its plea taken during the course of trial---Circumstances established that prosecution had succeeded to prove its case against the accused persons without shadow of any doubt---Appeal against conviction and sentence was dismissed in circumstances.

PLD 2001 SC 96 and Gul Muhammad v. The State PLD 2012 Bal. 22 rel.

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

----Art. 40---Disclosure of accused---Admissibility---Disclosure coupled with discovery of new facts was admissible under Art. 40 of Qanun-e-Shahadat, 1984.

Muhammad Iqbal Gola for Appellants (in Criminal Appeal No.172 of 2016).

Muhammad Khair Mengal for Appellants (in Criminal Jail Appeal No. 47 of 2016).

Muhammad Yahya Baloch, D.P.G. for the State.

Muhammad Ibrahim Lehri for the Complainant.

2018 P Cr. L J 1159

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ZUBAIR AHMED and another---Appellants

Versus

The STATE and another---Respondents

Criminal ATA Appeal No. 234 and Murder Reference No. 11 of 2014, decided on 21st June, 2017.

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

----Ss. 302, 324, 436 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., act of terrorism---Appreciation of evidence---Medical evidence---Prosecution case was that accused along with other absconding accused made indiscriminate firing upon the passenger wagon, which resulted into setting on fire the wagon, shops and other vehicles and thereby caused lost of seventeen innocent lives as well as damage to the properties of general public---Unnatural death of seventeen persons were not disputed---Soon after the occurrence, the dead bodies were shifted to hospital, where Medical Officers carried out the medical examinations of dead bodies---Medical Officers had opined that bodies were severely burnt and were unable to recognize even the gender and ages of dead bodies---Medical Officers issued Medico-Legal Certificates of dead bodies which confirmed the unnatural death of deceased persons---Defence had not disputed the unnatural death of deceased but pleaded his false implication---Medical Officers had taken medical aid to the injured witnesses and issued Medico-Legal Certificates with regard to injuries sustained by the injured witnesses---Circumstances established that seventeen persons died unnaturally and due to the act of accused---Appeal against conviction was dismissed in circumstances.

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

----Ss. 302, 324, 436 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., act of terrorism---Appreciation of evidence---Ocular account---Ocular testimony produced by two witnesses, who were driver and cleaner of the wagon, which was torched on fire---Said witnesses stated that on the day of occurrence, they were loading the petrol and diesel on the roof of wagon, when three armed persons came there and started indiscriminate firing on the wagon---Accused and absconding accused were identified by the witnesses---Wagon was full of both male and female passengers, while a passenger was sitting on the roof top of the wagon---During the firing, said passenger fell down from the roof of the wagon---Firing bullets hit to the passengers and the wagon caught fire, due to which the passengers and the nearby shop were burnt to ashes---Witness of ocular account identified the accused in the court as a culprit of occurrence, who made firing upon the wagon and witnesses---Other witness of ocular account recorded his statement, which was in line with the statement of witness and corroborating his statement on all counts---Statements of both the eye-witnesses were found reliable because their presence at the time of incident being driver and cleaner of wagon, was natural as the wagon was loaded with passenger---Record showed that both the witnesses were independent and credible, had no relationship with the accused and had no business rivelry, reason to falsely implicate the accused---Defence had cross-examined both the witnesses at sufficient length but had failed to give dent or damage to their testimony---Appeal against conviction was dismissed in circumstances.

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

----Ss. 302, 324, 436 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., act of terrorism---Appreciation of evidence---Allegation of firing on a passenger wagon killing seventeen persons injuring several persons resulting into setting on fire shops and other vehicles as well as damage to public properties---Circumstantial evidence---Prosecution had produced the evidence of natural witnesses, who were injured at the time of the incident---Prosecution had produced the circumstantial evidence through the statements of eight witnesses---Though none of the witnesses had seen the accused making firing but being natural witnesses, mostly shopkeepers and passengers, their presence at the time at the place of occurrence was natural---Most of them had received number of bullet injuries on their persons---Statements of said witnesses coupled with the statements of the other witnesses rebutted the claim of defence, who alleged that fire ablazed due to some other reason like open sale of petrol and diesel and not due to firing of accused---All the said witnesses had categorically stated that accused persons made firing with firearms which resulted into setting the fire in the vehicle and shops---Contention of defence was further rebutted by the recovery of thirty one empties of Kalashnikovs that were taken into possession from the place of occurrence---Circumstances established that indiscriminate firing had taken place before the incident.

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

----Ss. 302, 324, 436 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., act of terrorism---Appreciation of evidence---Disclosure by accused---Admissibility---Accused disclosed the names of absconding accused persons as his accomplices and narrated the manner in which they planned to launch the attack---Accused also pointed the place of occurrence---Since disclosure of accused disclosed the discovery of new facts which earlier was not known, therefore the same was admissible piece of evidence.

Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----Ss. 302, 324, 436 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., act of terrorism---Appreciation of evidence---Statement of witnesses recorded belatedly---Effect---Defence objected that the statement of witnesses under S. 161, Cr.P.C. was recorded at belated stage---Delay in recording the statements of witnesses by the Investigating Officer was well explained---All the witnesses were either seriously injured or their close relatives had lost their lives in the incident and even they were shocked being escaped from the death from a heartbreaking incident---Most of the witnesses were admitted to the hospital being received bullet injuries---Few witnesses were busy in Fateha---Said situation justifiably explained the factum of delay caused in recording statements of witnesses under S. 161, Cr.P.C.

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

----S. 161---Statement of witness recorded under S. 161, Cr.P.C. at belated stage---Effect---If the statement of witnesses recorded under S.161, Cr.P.C. at belated stage, such evidence could not be given the sanctity as was generally given to the evidence of a witness whose statement had been recorded promptly soon after the occurrence---If the delay was reasonably and justifiably explained and explanation appealed to the logic and rang true, the evidence of such witnesses could not be discarded merely on the ground of being recorded at belated stage.

Haji Allah Bakhsh v. Intisar Ahmed and others 2012 SCMR 1281; Shabbir Hussain and others v. The State 1999 MLD 2332; Qaiser Hussain alias Kashi alias Kashif v. The State 2011 PCr.LJ 1126 and Allah Dina v. The State 2003 PCr.LJ 1946 rel.

Taj Muhammad Mengal for Appellant.

Muhammad Yahya Baloch, D.P.G. for the State.

2018 P Cr. L J 1216

[Balochistan]

Before Abdullah Baloch, J

GUL MIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 198 and Murder Reference No. 6 of 2014, decided on 22nd September, 2017.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused and cousin of complainant were quarrelling, accused fired at the cousin of complainant, due to which, he died at the spot---Two persons of complainant side sustained injuries when both sides started fighting after the firing---Ocular account was furnished by cousin and brothers of deceased being eyewitnesses---Record showed that statements of eye-witnesses, being brothers and cousin, nominated and attributed role of murder of deceased to the accused---Statements of said witnesses were not worth credence and confidence inspiring---Said witnesses had neither shown their presence at the place of occurrence nor corroborated the statements of each other on the manner in which the occurrence took place---Conduct of blood relation eyewitnesses did not appeal to the prudent mind that while in presence of brothers and cousin of deceased, the accused single handedly armed with shot gun came over there and after exchange of few harsh words started firing on the deceased---Despite presence of all eyewitnesses, none of them had resisted or tried to save the deceased from the clutches of accused---No action/reaction had arisen from the circumstances of the case to believe the statements of natural eyewitnesses, as such, the conduct of all eye-witnesses itself created doubt in the case of prosecution---All the witnesses were interested being related with each other and the deceased---Circumstances of the case showed that there were certain inhabitants of the area, who at the time of alleged incident gathered around at the place of occurrence, but none of them was made as witness to corroborate the prosecution version---Case of prosecution, in circumstances, lacked independent corroboration and the accused could not be assumed to be culprit solely on the statements of witnesses that were interested and were related to the deceased---Testimony of said interested witnesses were not reliable, which reflected that prosecution tried to suppress material evidence---Circumstances established that prosecution had failed to prove its case beyond 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.

Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

(b) Criminal trial---

----Witness---Interested witness---Testimony of interested witness---Reliance---Scope---Mere relationship of witnesses inter se or to the deceased was not sufficient to discredit out-rightly their testimony, if otherwise, such witnesses were found to be the witnesses of truth--- If the independent and impartial witnesses were available and they were not produced and withheld and only the related witnesses, whose testimony was not confidence inspiring, were produced, testimony of such witnesses could not be relied upon without independent corroboration tending to satisfy the court that the witnesses had spoken the truth.

Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence and empties---Effect---Neither any empty of the gun was taken into possession from the place of occurrence nor the weapon was recovered from the possession of accused---Accused was admittedly arrested from the place of occurrence---Such gross negligence and defective investigation created serious dent in the case of prosecution---Prosecution had failed to establish the charge against the accused beyond shadow of doubt---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(d) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused would entitle him/her to the benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Manzoor Ahmed Rehmani for Appellant.

Abdul Karim Malghani, State counsel for the State.

2018 P Cr. L J 1275

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SHAUKAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 64 of 2017, decided on 31st October, 2017.

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

----Ss. 376, 377 & 34---Rape, unnatural offence, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Prosecution case was that the daughter of complainant and the witness were kidnapped by the accused and acquitted co-accused, in a vehicle and were taken to the abandoned place where accused committed Zina-bil-Jabr with her---Ocular account was furnished by the witnesses including complainant and victim---Complainant of the case appeared as witness and reiterated the contents of her fard-e-bayan and confirmed that the accused abducted the victim, took her towards jungle and committed Zina-bil-Jabr with her---Victim narrated the story with regard to her abduction, when she was accompanied by witness, by the accused persons and accused committed Zina-bil-Jabr with her---Witness, who at the relevant time had accompanied the victim, had supported the statement of victim---Statement of said witness to the extent of commission of Zina was corroborated by the victim---Medical Officer, who examined the victim had opined that unnatural sex was committed with the victim---Abrasions on different parts of the body of the victim suggested that Zina was forcibly committed and the victim at the time of Zina made resistance to rescue herself---Victim being a minor child of about fourteen years failed in her attempt to rescue herself due to which, she received abrasions on different parts of her body---Defence had objected that the case of prosecution lacked independent corroboration---Facts remained that the crime had taken place in the abandoned area, where the presence of general public or third person to witness the crime was not possible---Prosecution had produced direct and medical evidence against the accused---Accused had failed to take any specific plea regarding false implication---Medical evidence was in line with the ocular testimony---Prosecution had produced corroborative and confidence inspiring evidence and the defence had failed to cause any dent in the evidence of prosecution---Accused, in the circumstances, had failed to point out any material illegality or irregularity in the impugned judgment---Trial Court however had harshly treated the accused by awarding the sentence of life imprisonment under S. 376, P.P.C. instead of S. 377, P.P.C. as S. 377, P.P.C. was attracted in the case of accused who had committed unnatural offence of sodomy with the victim---High court interfered to the extent of quantum of sentence in the circumstances, and reduced life imprisonment to that of three years with reduction in fine---Appeal against conviction was dismissed with the said modifications.

Kamran alias Kami v. the State 2012 PCr.LJ 1200 rel.

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

----Ss. 376 & 34---Rape, common intention---Appreciation of evidence---In presence of direct evidence supported by medical evidence, report of serologist was always deemed to be corroborative piece of evidence.

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

----Ss. 376 & 34--- Rape, common intention---Appreciation of evidence---Slight contradictions in the statements of witnesses who were minors---Effect---Record showed that accused remained fugitive from law for a decade---Witnesses, who were minors were not expected at the relevant time, to give tape-recorded statement after lapse of such a long period---Memories became fade after lapse of some time---Minor or slight contradictions in the statements of such witnesses were not fatal.

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

----Ss. 377 & 376---Unnatural offence---Solitary statement of victim---Evidentiary value---In case of sodomy or Zina, the solitary statement of the victim was sufficient to convict the accused.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

Taj Muhammad Mengal for Appellant.

Muhammad Yahya Baloch, D.P.G. for the State.

2018 P Cr. L J 1297

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SALAHUDDIN and another---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 13 and Criminal Revision No. 3 of 2017, decided on 15th August, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of more than nine hours in lodging FIR---Effect---Occurrence took place on 25th November, 2015 at about 4.15 p.m. and the dead body of the deceased was taken by the complainant and eyewitnesses to the hospital, where the same was examined by the doctor at about 4.25 p.m.---Prior to lodging FIR, complainant and witnesses took the dead body to their village, which was far away at the distance of 25-kilometers from the place of occurrence---After burial of dead body, without loss of time, complainant lodged the FIR at about 1.30 a.m. (night)---First Information Report, in circumstances, could be termed as promptly lodged FIR---Delay in lodging FIR particularly when no deliberation or consultation had taken place, was of no consequence.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that complainant party armed with firearms, made firing upon the brother of complainant, who succumbed to the injuries---Ocular account was furnished by three witnesses including complainant---Said witnesses corroborated each other on all material points like time of occurrence, mode and manner of occurrence and injuries attributed to the deceased by the accused---Witnesses were cross-examined at length, however, the defence could not shatter the veracity of their deposition---Defence had failed to create any dent in the statements of witnesses---Admittedly, the occurrence had taken place at the daylight and parties were previously known to each other, therefore, question of mistaken identification was not possible---Medical Officer, who conducted the external examination with regard to locale and seat of injuries on the person of deceased, coincided with the time of occurrence and use of firearm weapon---Circumstances established that medical evidence had fully corroborated the ocular evidence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related witness---Scope---Complainant though happened to be the real brother of the deceased, but mere relationship of witness with the deceased could not discredit his testimony, if same was confidence inspiring and appealing to the reasons and corroborated by independent circumstances.

Ijaz Ahmed v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Scope---Conviction on ocular testimony ---Ocular account was always deemed to be the principal evidence and if the same was corroborated by medical evidence, that was sufficient to record conviction.

Amel Shireen v. The State PLD 2004 SC 271 and Anwar-ul-Haq v. The State 2004 SCMR 252 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Quantum of sentence---Capital punishment---Scope---Mitigating circumstances---Record showed that complainant in the written complaint had mentioned that the motive behind the occurrence was previous enmity---Scope---When previous enmity was admitted by the prosecution, the same would create mitigating circumstance in the case---In the presence of mitigating circumstance, capital punishment could not be awarded---Life imprisonment awarded by the Trial Court was maintained by the High Court.

Muhammad Aslam Chishti for Appellant.

Muhammad Yahya Baloch, D.P.G. for the State.

Syed Ayaz Zahoor for the Complainant.

2018 P Cr. L J 1351

[Balochistan]

Before Nazeer Ahmed Langove, J

LIAQAT ALI and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (S) 17 of 2018, decided on 21st February, 2018.

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

----Ss. 324, 337-F(iii) & 34---Attempt to commit qatl-i-amd, causing mutalahimah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that at about 4.30 a.m., the accused persons with unknown accomplice, all equipped with deadly weapons, came for stealing two bullocks of complainant---Accused persons, on resistance, made firing causing injuries to the complainant and his son---Accused were arrested by the police after an encounter---Record showed that FIR had been registered without any delay wherein name of the accused persons figured with parentage, which was not possible in the odd hours of night though they were allegedly identified in the light of bulb, but no proof of light had been brought on record---Accused persons were arrested by the police after the alleged encounter which continued for thirty minutes in which both the parties resorted to firing but none from either side received a single bruise nor any property was damaged---Site inspection notes showed that one son of complainant was shown as injured but the medical certificate produced in the court was of another son of complainant---Said son did not appear before the Trial Court---Withholding of such evidence without good cause suggested that had the said evidence been brought on record, same would have been unfavourable to the prosecution---Record transpired that there were material contradictions in the statements of witnesses with regard to registration of case and the visit to the hospital---Witness had stated that he shifted the injured to the hospital and thereafter went to police for registration of case, while complainant had narrated a different story of his visit to the hospital---Prosecution had sent empty shells and crime weapon to the expert with the unexplained delay of more than three months, which was fatal to the case of prosecution---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded against them by the Trial Court.

Ali Sher and others v. The State 2008 SCMR 707; Darbar Abbas Shah and another v. The State 2010 PCr.LJ 1270 and Mian Dad Leghari v. The State 2009 PCr.LJ 1226 rel.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence itself did not connect a particular person with the commission of offence nor was a conclusive proof rather supported the ocular account.

Ata Muhammad and another v. The State 1995 SCMR 599 and Abdul Subhan v. Raheem Bakhsh PLD 1994 SC 178 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single doubt was created in the prosecution case, accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230; Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 and Fariad Ali v. State 2008 SCMR 1086 rel.

Ms. Tehmina Samad for Appellants.

Abdul Karim Malghani, State counsel.

2018 P Cr. L J 1443

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

SADDAM HUSSAIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.(s) 161, Criminal Revision No.(s) 47 and Criminal Acquittal Appeal No. (s) 157 of 2015, decided on 24th January, 2018.

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

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that on the day of occurrence, accused with co-accused persons duly armed with Kalashnikovs came at the place of incident and started firing upon the brother of the complainant, due to which, he sustained injuries and died at the spot, while another Police Official, who at the relevant time was passing from there also came under firing, received injuries and subsequently succumbed to the injuries---Ocular account of the occurrence was furnished by the three witnesses including complainant, claiming to have directly witnessed the crime---Complainant was brother of the deceased, whereas remaining eye-witnesses were brother and son of the deceased---Record showed that initially, accused and co-accused were arrested and after taking cognizance of the case, Trial Court examined the statement of five witnesses including the eye-witnesses of the prosecution---Another accused was arrested subsequently, and to his extent, the Trial Court again examined all the prosecution witnesses---Both the statements of witnesses recorded in the Trial Court were contradictory to each other on material counts as well as the first and second statements of the witnesses were also contradictory to their earlier depositions recorded during investigation of the case---Complainant appeared as witness and made contradictory statement from his fard-e-bayan---Complainant had mentioned in his fard-e-bayan that there existed no motive behind the occurrence and his brother was murdered without any reason, but said witness had himself contradicted his assertion in his court statement and admitted the existence of previous enmity that he was nominated in case registered under S. 302, P.P.C., whereby the father of accused and co-accused were murdered---Brother of complainant/witness also made his ignorance that prior to present incident, his brother had committed the murder of three persons of the accused party---Complainant and his brother knowingly made attempt to camouflage the motive for the occurrence---Complainant had deposed that he approached the police for registration of FIR by submitting his fard-e-bayan on the same day, but the same was delayed by the police for two days and on the third day of incident, second fard-e-bayan was taken from him and accordingly the FIR was lodged---Complainant had failed to produce the copy of his first fard-e-bayan in the court and also had failed to produce any evidence in such behalf that whether he had approached the high-ups of the department or otherwise---Other eyewitness had failed to justify his presence at the time and place of occurrence---Complainant and eye-witness had stated that after the incident, the police had come and took the deceased and the injured to the hospital and nowhere the presence of other eye-witness was mentioned---Said eye-witness had mentioned that he worked in the said shop, in front of which the incident had taken place---Said witness deposed that he along with police had taken the injured to the hospital---Said witness made certain dishonest improvements from his earlier deposition---Said witness stated that his father remained unconscious for ten days and succumbed to injuries---On the contrary, Medical Officer, who treated the father of witness stated that during treatment, the injured was capable to speak---Statements of all the star witnesses were found contradictory to each other---Witnesses made unsuccessful attempt to establish their presence at the place of occurrence, but they failed which showed that occurrence was un-witnessed, due to which the FIR was delayed for two days and accused were nominated in the FIR after consultation and deliberation---Complainant with his brother as well as the son of deceased were the target of the accused party, but brother and father of the complainant party were hit and the complainant or the witnesses were let free---Said factor did not appeal to the logic that by killing two persons in presence of their close relatives accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged---Incident took place on 27.12.2014 and on that date, (without registration of FIR), the first Investigating Officer of the case arrived at site and started investigation of the case by inspecting the site, preparing site plan, collecting the empties of Kalashnikov, preparing recovery memos and sealing the empties in parcel, collecting the blood-stained earth, recording the statement of witnesses and deceased then injured under S. 161, Cr.P.C., shifted the injured and deceased to the hospital, while admittedly, the FIR was lodged on 29.12.2014---Such investigation could have been conducted after registration of FIR---Allegedly, Kalashnikov was recovered on the pointation of accused, but prosecution had failed to establish the same through solid evidence---Similar role had been ascribed to all the accused, but Trial Court disbelieved the same to the extent of acquitted accused, but on the same set of evidence, accused was awarded conviction and sentence---Circumstances established that prosecution had failed to prove its case against the accused beyond any reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

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

----S. 154---Lodging of FIR---Scope---If the complainant party was reluctant to lodge the FIR, the SHO of the concerned police station could have lodged the FIR on his own on receipt of information about commission of cognizable offence---Police had no authority to delay the registration of FIR on flimsy grounds---Once information regarding the commission of a cognizable offence had been given to the SHO, it was his statutory duty to enter every information regarding the commission of cognizable offence in a book maintained at Police Station.

Mst. Shehnaz alias Asma alias Rani and another v. The State 2010 PCr.LJ 23 rel.

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

----Ss. 302(b), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qattl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Withholding material evidence---Effect---Eyewitness stated that another witness was accompanied them at the relevant time and the name of said witness also appeared in the challan, but the evidence of said witness was withheld by the prosecution without any plausible reason or justification---Adverse presumption could fairly be drawn that had the said witness been examined in the court, his evidence would have been un-favourable to the prosecution.

Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

Ahsan Rafiq Rana for Appellants.

Sarwar Khan Kakar for the Complainant/Petitioner/Appellant.

Jamil Akhtar Gajani, A.P.-G. for the State.

2018 P Cr. L J 1484

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

GHULAM ALI---Applicant

Versus

MUHAMMAD AZAM and another---Respondents

Criminal Transfer Application No. (s) 141 of 2017, decided on 27th January, 2018.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S. 302---Murder trial---Transfer of proceedings---Security of prosecution witnesses---Complainant sought transfer of trial from court at place 'S' to court at place 'D' on grounds of security of prosecution witnesses---Validity---Application of complainant was supported by affidavits of prosecution witnesses who were star eye-witnesses of the case and they were under fear and threat to appear before Trial Court at place 'S' and record their statements---Apprehension of security of prosecution witnesses existed which was likely to result in inconvenience/ intimidation to prosecution witnesses if they would come forward and record their statements before Trial Court at place 'S'---High Court directed that case be withdrawn from court at place 'S' and was transferred to court at place 'D'---Application was allowed in circumstances.

Elahi Bakhsh for Appellant.

Muhammad Ibrahim Lehri for Respondent No.1.

Abdul Mateen, DPG for the State.

2018 P Cr. L J 1538

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

The STATE---Respondent

Criminal Revision Petition No. (s) 16 of 2016, decided on 19th January, 2018.

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

----Ss. 365, 377 & 34---Kidnapping or abducting with intent to secretly and wrongfully confine person, unnatural offence, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that the accused forcibly took away the minor son of complainant on motorcycle and then took him into a room, where another unknown person was present, where all of them committed sodomy with the minor---Ocular account of the occurrence was furnished by the complainant and the victim---Record showed that complainant of the case appeared as witness and fully reiterated the contents of FIR and narrated the entire story in line with the fard-e-bayan and the FIR---Complainant narrated the whole story with regard to non-return of his son from bazaar and his arrival on the following day and on query, the victim disclosed about the episode---Complainant without any loss of time promptly lodged the FIR by specifically nominating the accused persons and the act of abduction as well as committing unnatural offence with his son---Evidence of said witness was subjected to lengthy cross-examination, but nothing beneficial had come out on record in favour of the accused---Victim appeared and narrated the whole story with regard to his abduction on motorcycle by the accused persons and taking him towards fisheries pool and committing unnatural offence with him the whole night and setting him free on the following day---Statement of the victim was in line with his earlier statement---Said witness was cross-examined at sufficient length, but nothing fruitful had come on record in favour of defence---Nothing was on record to show that victim was tutored by his elders---Statement of the victim child had been corroborated by the circumstantial witnesses and medical evidence---Both the complainant as well as the victim remained consistent and firm in their depositions---Said witnesses accurately uttered the date, time and manner in which the accused persons took the victim and committed sodomy with him---Ocular testimony produced by the prosecution was direct in nature and the same remained unshaken, consistent and confidence inspiring on all material counts---Witnesses fully supported the case of prosecution---Case of prosecution had further been strengthened by the medical evidence produced by the Medical Officers, who opined, after complete examination of victim, that the victim had been sexually assaulted---Medical evidence had remained unshaken and unchallenged---Record transpired that prosecution had produced corroborative and confidence inspiring evidence and the defence had failed to cause any dent in the same---Circumstances established that defence had failed to point out any misreading or non-reading of evidence and major contradiction in the statements of prosecution witnesses or any material illegality or irregularity in the impugned judgment, warranting interference---Appeal was dismissed in circumstances.

Kamran alias Kami v. The State 2012 PCr.LJ 1200 and Muzammil Shah v. State 1991 MLD 1944 rel.

(b) Criminal trial---

----Witness---Interested/related witness---Testimony of interested/related witness---Scope---Related witness was as much competent witness as any other provided, he was not inimical towards accused and had no motive to implicate the accused in a false case.

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

----Ss. 365, 377 & 34---Kidnapping or abducting with intent to secretly and wrongfully confine person, unnatural offence, common intention---Appreciation of evidence---Solitary statement of victim---In case of sodomy or zina, the solitary statement of victim was sufficient to convict the accused if it was confidence inspiring.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

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

----Ss. 365, 377 & 34---Kidnapping or abducting with intent to secretly and wrongfully confine person, unnatural offence, common intention--- Appreciation of evidence---Delay of one day in lodging FIR---Defence had objected that FIR was lodged after the delay of one day which was fatal to the prosecution case---Effect---Delay alone in lodging the FIR was not helpful for defence to claim acquittal of the accused---In the present case, FIR was lodged promptly by the complainant as and when the victim returned to his house and informed his father about the incident---In such like cases, the prestige and respect of family was involved as the child of someone was defamed---People were reluctant in filing report to the police and it was a natural course that the guardian of victim must have consulted his relatives, whether to file report or not---Delay in filing FIR, in circumstances, was natural and same was not material to the case.

Nadir Ali Chalgari for Petitioner.

Jameel Akhtar Gajani, APG for the State.

2018 P Cr. L J 1595

[Balochistan (Sibi Bench)]

Before Abdullah Baloch and Nazeer Ahmed Langove, JJ

ALLAH BAKHSH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. (S)63 of 2016, (S)7 and (S)15 of 2018, decided on 12th March, 2018.

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

----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that accused party had made indiscriminate firing at the son of the complainant, due to which he died at the spot, while friend of deceased and a lady sustained bullet injuries---Medical Officer, who conducted post-mortem of deceased, found multiple firearm injuries on his person---Investigating Officer also examined the deceased and prepared the inquest report and confirmed that the deceased had received bullet injuries on his person---Said Medical Officer also examined the injured and found a firearm wound on left leg above the ankle joint lateral calf muscle---Female Medical Officer examined the injured lady and found dual entrant bullet injuries on the left side of chest and right lower leg and exit wound on the back of the chest and back of right leg---Medical evidence had not only confirmed the unnatural death of deceased, but also the receiving of bullet injuries by the two injured, which supported the ocular account.

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

----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Ocular account---Prosecution case was that the accused party made indiscriminate firing at the son of the complainant, due to which he died at the spot, while friend of deceased and a lady sustained bullet injuries---Initially, case was tried by the Anti-terrorism Court and thereafter, was transferred to ordinary criminal court---Prosecution had produced four eye-witnesses including complainant and injured lady---Complainant reiterated the contents of his fard-e-bayan---Eyewitness corroborated the statement of complainant on all counts with regard to their arrival at place of occurrence, arrival of accused persons armed with T.T. pistol, made firing upon the deceased and his friend on the allegations of siyakari and thereafter they went to their house and made firing upon injured lady---Said witness had confirmed the presence of another eyewitness at the house of injured lady---Injured lady being the most important witness of the occurrence had deposed that accused persons came to their house and declared her siyakar and told that she would not be survived and made firing upon her, due to which she received injuries and fell down---Injured lady was shifted to hospital by the police---Statement of injured lady had also been corroborated by the other eye-witness---Record transpired that statements of all eye-witnesses would establish the fact that all of them were natural witnesses and they justified their presence at the relevant time, witnessing the crime directly---Said witnesses correctly narrated the date, time, the place of occurrence, the manner in which the accused persons appeared at the site caused the murder of the deceased and injured his companion and thereafter they injured the lady---Said witnesses were cross-examined at sufficient length, but the defence had failed to shake their testimony---Said witnesses had correctly identified the accused persons in the Trial Court---Circumstances established that defence had absolutely failed to point out any material illegality, irregularity or infirmity in the case of prosecution, warranting interference---Conviction and sentences awarded to the accused persons under S. 324, P.P.C. was ten years in first judgment, while in the second judgment, on same set of evidence, the same accused persons were convicted under S. 324, P.P.C. for five years---Sentences so awarded to accused persons under S. 324, P.P.C., in circumstances, seemed to be discriminatory in nature thus, was reduced from ten years to five years---Appeal was dismissed accordingly.

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

----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statements of interested witnesses---Defence had objected that only interested witnesses were produced in the trial court and the case of prosecution lacked independent corroboration---Effect---Record showed that all the witnesses were not interested witnesses---Injured lady was the sister of two accused and the close relative of remaining culprits, who received grievous injuries on her person; she was also closely related to the accused party thus, it did not appeal to the logic that both the witnesses having blood relations with the accused party, would falsely involve them---Admittedly, in male dominated society, the womenfolk would not come forward against the male specifically against their blood relatives like father, brother, cousins and tribal elders---In the present case, both the women witnesses at the risk of their lives came forward and nominated the culprits in their testimonies---Testimonies of said women were not only worth confidence, but also most reliable evidence in the case and defence had failed to give jolt or shake their testimonies---Evidence of sole lady witness was enough to establish the charge against the accused persons.

(d) Criminal trial---

----Witness---Interested witness---Statement of interested witnesses---Scope---Mere relationship of the witnesses inter se and with the deceased was not sufficient to term them as interested witnesses unless it was found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the accused persons in a criminal case.

Khizar Hayat v. The State 2011 SCMR 429; Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allah Ditta v. The State PLD 2002 SC 52 rel.

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

----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Single witness---Conviction---Scope---Conviction could be awarded on the statement of single witness as the quality not the quantity was required to establish a criminal charge.

Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Farooq Khan v. The State 2008 SCMR 917 rel.

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

----Ss. 302(c), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i­-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Disclosure by accused ---Admissibility---Disclosure of accused relating to discovery of new facts or the recovery of an incriminating evidence, was admissible under the provisions of Art. 40 of Qanun-e-Shahadat, 1984.

Ahsan Rafiq Rana for Appellants (in Criminal Appeal No. (S) 63 of 2016).

Muhammad Nasir Marri for Appellants (in Criminal Appeal No.(S) 7 of 2018).

Hasnain Iqbal Minhas for Appellants (in Criminal Appeal No.(S) 15 of 2018).

Jamil Akhtar Gajani, Additional P.-G. for the State.

Abdul Jalil Lehri for the Complainant.

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2018 P Cr. L J 34

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

CRIMINAL APPEAL NO. 26 OF 2016

(On appeal from the judgment of the High Court dated 02.02.2016 in Criminal Appeal No. 06 of 2013)

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

Versus

RUSTAM KHAN and 13 others---Respondents

CRIMINAL APPEAL NO. 46 OF 2016

(On appeal from the judgment of the High Court dated 25.01.2016 in Criminal Appeal No. 12 of 2012)

MANZOOR AHMED BUTT---Appellant

Versus

RUSTAM KHAN and 14 others---Respondents

Criminal Appeals Nos. 26 and 46 of 2016, decided on 24th May, 2017.

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

----S. 417---Appeal against acquittal---Appeal by Additional Advocate-General on behalf of the State---Competence---Accused were acquitted by the Trial Court under S. 265-K, Cr.P.C.---Appeal was dismissed on the ground that the same was not filed by the competent person---Validity---Section 417(1), Cr.P.C. was fully applicable to the present case, which clearly manifested that for the purpose of filing appeal against acquittal, Government could only appoint the Public Prosecutor---Additional Advocate-General did not come within the purview of the "Public Prosecutor" within the meaning of S. 417(1), Cr.P.C. to file appeal against acquittal on behalf of the State---Circumstances established that there was no illegality committed by the High Court while passing the impugned judgment---Appeal was dismissed accordingly.

State through Advocate-General, Sindh v. Hanif Ahmed and others 1994 SCMR 749 and Mst. Aziz Fatima through Advocate-General and another v. The State 1997 PCr.LJ 618 rel.

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

----Ss. 221, 222, 223, 225-B & 109---Criminal Procedure Code (V of 1898), S. 417(2-A)---Intentional omission to apprehend on the part of public servant bound to apprehend; intentional omission to apprehend on the part of public servant bound to apprehend person under sentence or lawfully committed; escape from confinement or custody negligently suffered by public servant; resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise provided for; abetment---Appeal against acquittal---Accused were acquitted by the Trial Court under S. 265-K, Cr.P.C.---Appeal against acquittal was filed before the High Court, which was dismissed on the ground of limitation---Prosecution had alleged that High Court fell in error of law while dismissing the appeal on the ground of limitation as limitation against the acquittal order passed without recording evidence under S. 265-K, Cr.P.C., was not thirty days---Validity---Section 417(2-A), Cr.P.C. provided limitation for filing appeal against acquittal order of any court other than High Court, which was thirty days---Said provision did not make any difference that the person was acquitted of the charge without recording evidence under S. 265-K, Cr.P.C., or after recording evidence under S. 245, Cr.P.C.; in each case, S. 417(2-A), Cr.P.C., provided limitation for filing appeal against the acquittal order which was thirty days---Record showed that appeal before the High Court was filed beyond the prescribed period of limitation, which was rightly dismissed---No illegality was committed by the High Court while passing the impugned judgment, thus appeal was dismissed in circumstances.

Ahmed Din v. Haseeb Ullah and 3 others 2008 PCr.LJ 1067 rel.

Mehmood Hussain Chaudhary, Advocate for the State (in Criminal Appeal No. 26 of 2016).

Raja Inamullah, Advocate for Respondents (in Criminal Appeal No. 26 of 2016).

Sh. Masood Iqbal, Advocate for Appellant (in Criminal Appeal No. 46 of 2016).

Raja Inamullah, Advocate for Respondents (in Criminal Appeal No. 46 of 2016).

2018 P Cr. L J 747

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J.

MUHAMMAD SAGHEER AWAN and another---Petitioners

Versus

IWZA ASLAM and others---Respondents

Civil P.L.A. No. 504 and Civil Misc. No. 325 of 2017, decided on 9th February, 2018.

(On appeal from the judgment of the High Court dated 17.11.2017 in Writ Petition No. 1631 of 2017)

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Sessions Court---Powers and Jurisdiction---Scope---Alleged detenue directed to be sent to shelter home---Scope---Petitioners contended that Sessions Court had rightly sent the detenue lady to shelter home as her marriage was disputed under two Nikahnamas---Respondents contended that High Court had rightly released sui juris from the shelter home as Sessions Court had powers to set alleged detenue free but could not force her to be kept at shelter home---Sessions Court was to determine as to whether the alleged detenue was in illegal confinement or not and then to pass order either to reject the application or to set the alleged detenue free but sending the sui juris lady to shelter home in the proceedings under S. 491, Cr.P.C. was without lawful authority---Petitioners were at liberty to agitate before the proper forum; either before the Family Court or if there was any criminal case registered according to the version of the petitioners then in criminal proceedings, the competent Court could determine the proposition but the same could not be resolved under S. 491, Cr.P.C.---Supreme Court observed that no question of law was involved in the present case---Petition for leave to appeal was dismissed accordingly.

Raja Aftab Ahmed Khan, Advocate for Petitioners.

Raja Atif Khan, Advocate for Respondents.

2018 P Cr. L J 1236

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUHAMMAD JAVED---Petitioner

Versus

The STATE through Advocate-General of Azad Jammu and Kashmir, Muzaffarabad and another---Respondents

Criminal Revision No. 15 of 2017, decided on 8th December, 2017.

(On Revision from the judgment of the High Court dated 5.10.2017 in Criminal Revision No. 156 of 2017)

Criminal Procedure Code (V of 1898)---

----S. 540--- Summoning of prosecution witnesses for cross-examination---Scope---Petitioner moved application under S. 540, Cr.P.C., before the Trial Court for summoning of two prosecution witnesses for cross-examination whose statements and already been recorded and one other who was abandoned by the prosecution---Trial Court rejected the application---Validity---Trial Court had discretion to exercise the powers under S.540, Cr.P.C., to recall the witnesses and to record the statement, but such discretion was subject to all just exceptions---Discretion vested in the court under said provision of law, was not to be exercised to fill in the lacuna in the case or encourage a witness to change his loyalty as a result of any pressure or ulterior motive---Court was duty bound to watch the interest of justice and disallow such frivolous applications which had been made after recording the evidence of the witnesses---Witness whose evidence had already been recorded, could only be recalled for elucidation of any points in his evidence which needed clarification, in either of the three stages of his examination i.e. examination-in-chief, cross-examination or re-examination---Impugned judgment did not suffer from any illegality---Petition was dismissed.

Azmat alias Papu and 3 others v. Mst. Nisa Begum and 2 others PLD 2007 SC(AJ&K) 72; Muhammad Khan v. The State 2003 PCr.LJ 1778; Muhammad Yaseen alias Mithou and another v. The State 2010 PCr.LJ 1253; Sardar Muhammad Khan v. Muhammad Afsar Khan and 3 others 1991 PCr.LJ 508 and Khalid Nawaz and another v. The State 1995 PCr.LJ 1932 ref.

Ch. Shoukat Aziz, Advocate for Petitioner.

Zubair Ahmed Raja, Additional Advocate-General and Raja Gula Majeed Khan, Advocate for Respondents.