PCRLJ 2019 Judgments

2019 P Cr. L J 87

[Federal Shariat Court]

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

NISAR---Petitioner

versus

The STATE---Respondent

Criminal Misc. Application No. 12-I of 2018 in Criminal Appeal No.131-I of 2007, decided on 12th September, 2018.

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

----Ss. 394 & 397--- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Criminal Procedure Code (V of 1898), Ss.35(2) & 397---Voluntarily causing hurt in committing robbery, robbery or dacoity, with attempt to cause death or grievous hurt, haraabah, possessing unlicensed arms---Computation of sentences concurrently, application for---Applicant/accused, was tried and convicted in two separate trials (one under Ss.394 & 397, P.P.C. and sentenced to life imprisonment and other under S.13(e) of Pakistan Arms Ordinance, 1965 and was awarded sentence of two years)---Accused had sought indulgence of High Court to grant premium to make an appropriate order under Ss. 35(2) & 397, Cr.P.C., for computing sentences concurrently awarded in two separate FIRs.---Power conferred upon High Court under S. 397, Cr.P.C., for ordering various sentences awarded in different cases to run concurrently no doubt was discretionary but said discretion had to be exercised judicially---Nothing was on record to suggest any compelling circumstances prompting to withhold premium claimed by accused---Withholding of relief as prayed by accused would create hardship to accused, who had already undergone more than 14 years sentence of imprisonment---Charitable and beneficial interpretation of S.397, Cr.P.C., cast duty upon the Shariat Court to grant relief sought for---Accepting application of accused, Court ordered that sentences awarded to accused in two FIRs would run concurrently.

Mst. Zubaida v. Falak Sher and others 2007 SCMR 548; Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others PLD 2015 SC 15 and Rahib Ali v. State 2018 SCMR 418 ref.

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

----S. 369---Constitution of Pakistan, Art. 203(E)(9)---Right of review by Federal Shariat Court---Scope---Right of review like right of appeal, was a substantive right and always creation of statute---No doubt, under S.369, Cr.P.C., review of the judgment was not permissible, except to correct a clerical error, but constitutional mandate authorized Federal Shariat Court to review its judgment under Art.203(E)(9) of the Constitution.

Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

Nemo for Petitioner.

Syed Abdul Baqir Shah for the State.

2019 P Cr. L J 207

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ

ARAB KHAN---Appellant

Versus

REJESH MASIH and 3 others---Respondents

Criminal Appeal No. 1/P of 2012, decided on 5th October, 2018.

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

----S.17(4)---Haraabah----Appreciation of evidence---Appeal against acquittal--Prosecution case was that respondents/accused persons committed murder of the deceased/brother of the complainant and robbed his vehicle---Record reflected that complainant in his statement under S. 164, Cr.P.C. recorded after twenty days of the incident, involved all the accused by name with parentage without showing any source of information---Cross-examination of the complainant was reserved and thereafter the accused were not afforded opportunity to cross-examine the complainant though all the accused were involved on the strength of unknown source/clue which was not unveiled during trial---Record showed that the robbed vehicle was recovered from the possession of one "A", who was not joined as accused nor was put in the witness box by the prosecution---Investigating Officer admitted that pistol was recovered from one accused, but was not sent to Fire Arm Expert in order to ascertain whether it was capable of firing or not---Recovered pistol was not sent to Forensic Science Laboratory in order to ascertain whether any firing was made from the said pistol or not---Said recovered pistol was not sent to the Finger Print Expert in order to ascertain the finger prints of the accused and others---Investigating Officer had admitted that at the place of recovery of pistol and mobile telephone, people of the locality were present but their statements were not recorded---Record transpired that one of the accused made confessional statement but the same could not be considered free from extraneous influences such as threat, promise or inducement and therefore, it was neither made voluntarily, suffered from various defects and infirmities, nor it was true statement which was retracted by the said accused---Confession of the said accused was not worth reliance---Circumstances established that the occurrence had taken place in which deceased was shot to death but not in the manner asserted by the prosecution, thus prosecution had failed to bring home the charge against the accused persons beyond reasonable doubt---Appeal was dismissed in circumstances.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Dosa v. The State 1988 SCMR 1532; Zafar Hayat v. The State 1995 SCMR 896; Waqar Zaheer v. The State PLD 1991 SC 447; Ghulam Akbar and another v. The State 2008 SCMR 1064 and Muhammad Hussain and 3 others v. The State 1974 PCr.LJ 164 ref.

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

----S. 164--- Confession---Retraction---Scope---Retracted confessional statement if not made voluntarily had no legal authenticity in the eyes of law.

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

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

----Ss. 417(2-A) & 410---"Appeal against acquittal" and "appeal against conviction"---Scope---Appeal against acquittal was quite different from the appeal preferred against the findings of conviction---Appellate jurisdiction under S. 417, Cr.P.C. could be exercised by the court if gross injustice had been done, more particularly, wherein, findings given by Trial Court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by the Trial Court were wholly artificial---Scope of appeal against acquittal of accused was considerably limited, because presumption of double innocence of the accused was attached to the order of acquittal.

2002 SCMR 713 rel.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Accused, in case of acquittal, earned double presumption of innocence---Till found guilty accused had to be considered innocent and his acquittal by Trial Court further confirmed the presumption of innocence.

Said Rasool v. Sajid and 3 others 2012 PCr.LJ 1699; Mst. Zahida v. Koki Khan and 2 others 2013 YLR 223; Abdul Ghafoor v. Zafid Wali 2011 PCr.LJ 1234; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; 2013 PCr.LJ 345; The State v. Faisal Munir PLJ 2009 FSC 284; Safdar Abbas and 4 others v. The State 2008 MLD 1007; Tanveer Hussain Shah v. Chan Waiz alias Khal Shah and others 2002 MLD 293; Khushi Muhammad v. Muhammad Rafique and others 2000 YLR 190; Sheo Swarup and others v. King Emperor AIR 1934 PC 227 (2); Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Fazalur Rehman v. Abdul Ghani and another PLD 1977 SC 529; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Azhar Ali v. The State PLD 2010 SC 632; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Intizar Hussain v Hamza Amir and others 2017 SCMR 633 rel.

(e) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating reasonable doubt in prudent mind about the guilt of the accused entitled him to such benefit not as a matter of grace but as a matter of right.

Hussain Ali for Appellant.

Qazi Intikhab Ahmed for Respondents.

Wilayat Khan, A.A.-G., Khyber Pakhtunkhwa for the State.

2019 P Cr. L J 285

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ

UMAR SYED---Appellant

Versus

SHER ALI and others---Respondents

Criminal Appeal No. 22/P of 2010, decided on 4th October, 2018.

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

----S. 132(2)--- Cross-examination--- Scope--- Opportunity to cross-examine as contemplated by the law must be real, fair and reasonable as the cross-examination was not the formality but a valuable right conferred by the statute---Cross-examination was the best method for ascertaining the truth from the mouth of the witness.

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

----S. 379---Offences Against Property (Enforcement of Hudood) Ordnance (VI of 1979), S. 14---Criminal Procedure Code (V of 1898), S.417(2-A)---Theft liable to tazir---Appreciation of evidence---Appeal against acquittal---Prosecution case was that respondents/accused persons reaped the standing wheat crop with chaff from the land of complainant and took the said crop to their homes and caused him loss of Rs. 70/80 thousands---Record showed that the approximate weight of the stolen wheat was 70/80 Munds---Admittedly, there was nothing on record to show that the Investigating Officer recovered or even tried/attempted to recover the said stolen wheat with or without chaff---Facts and circumstances of the case showed that the impugned judgment did not suffer from misreading or non-appraisal of evidence or lack of appreciation of material evidence or reception of evidence illegally or jurisdictional defects or evidence of material nature produced by the prosecution were not recorded or the acquittal order on the face of it was contradictory or/and the order of acquittal was passed without affording opportunity to the prosecution by violating principles governing the appreciation of evidence or that the acquittal judgment was based upon surmises, suppositions and conjectures and the acquittal was based upon reasons which did not appeal to a reasonable mind---Appeal against acquittal was dismissed in circumstances.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Presumption of innocence after acquittal was double and Court could not frequently interfere with the acquittal merely because by reappraisal of evidence, it could come to the conclusion different from that of the Trial Court.

Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710; Sheo Swarup and others v. King Emperor AIR 1934 PC 227 (2); Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Fazalur Rehman v. Abdul Ghani and another PLD 1977 SC 529; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Azhar Ali v. The State PLD 2010 SC 632; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592; Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633; 2002 SCMR 713; 2012 PCr.LJ 1699; 2013 YLR 223 and 2011 PCr.LJ 1234 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in prudent mind about the guilt of the accused entitled him to such benefit not as a matter of grace but as a matter of right.

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

----S. 154---First Information Report---Delay in lodging the FIR---Scope---No legal sanctity was attached to the FIR lodged after inordinate delay merely on disclosure of some unknown source or information.

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

----S. 417(2-A)--- Appeal against acquittal---Scope---Appeal against acquittal was quite different from the appeal preferred against the findings of conviction---Appellate jurisdiction under S. 417, Cr.P.C. could be exercised by the court if gross injustice had been done in the administration of justice, more particularly, wherein, findings given by Trial Court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by the Trial Court were wholly artificial.

2008 MLD 1007; 2003 MLD 293 and 2000 YLR 190 rel.

Umer Zafran for Appellant.

Maazullah Barkandai for Respondents.

Wilayat Khan, Assistant A.-G., Khyber Pakhtunkhwa for the State.

2019 P Cr. L J 420

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Syed Muhammad Farooq Shah, JJ

The STATE---Appellant

Versus

REHMATULLAH MARWAT and 3 others---Respondents

Criminal Appeal No. 03-K of 2013, decided on 25th October, 2018.

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

----Ss. 392, 220, 344, 452 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Robbery, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, wrongful confinement for ten or more days, house trespass after preparation for hurt, assault, common intention, haraabah---Appreciation of evidence---Appeal against acquittal---Prosecution case was that respondents/accused persons being Police Personnel, in furtherance of their common intention, criminally trespassed into shop of uncle of complainant and illegally/wrongfully confined complainant, his uncle and other persons at verandah of police station for more than ten days, knowingly that they were acting contrary to law and dishonestly removed cash, broken gold rings and bangles of uncle of complainant---Record reflected that the alleged incident had taken place on 18.3.2001, while the matter was reported on 6.7.2001, without any plausible cause---Complainant was involved in narcotics cases and he was granted bail on 7.4.2001 and, even after his release on bail, he did not make the complaint for considerable delay without any sufficient reason till 6.7.2001---Complainant had filed writ petition for reinvestigation of the case but did not lodge any complaint for registration of the case regarding his illegal confinement/commission of haraabah and his involvement in a false case---Complainant and witness were confined under the allegation of possessing narcotics for the offence punishable under Ss. 6 & 9 of Control of Narcotic Substances Act, 1997 and such FIR was registered against them---Arrest of witness from his shop and taking up the iron box by the accused/respondents was not disputed fact but the controversy remained to be resolved was that whether after taking witness along with iron box at police station, police party committed haraabah on gun point though it had been alleged by the police party that half kilogram heroine was recovered from the said trunk---Record showed that prosecution had failed to bring home the charge against the respondents/accused persons beyond reasonable doubt and the defence succeeded to create serious doubt and dents in the prosecution case---Trial Court had rightly acquitted the respondents of the charge---No case of interference in the impugned judgment was made out---Circumstances established that the present appeal against the impugned judgment had no merits for consideration, thus dismissed.

Sheo Swarup and others v. King Emperor AIR 1934 PC 227 (2); Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Fazalur Rehman v. Abdul Ghani and another PLD 1977 SC 529; The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Azhar Ali v. The State PLD 2010 SC 632; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; Mst. Salma Bibi v. Niaz alias Billa and 2 others 2011 PCr.LJ 856; Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 rel.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Appeal against acquittal was quite different from the appeal preferred against the findings of conviction and sentence---Appellate jurisdiction under S. 417, Cr.P.C. could be exercised by the court if gross injustice had been done in the administration of criminal justice, more particularly, wherein, findings given by Trial Court were perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by the Trial Court were wholly artificial---Scope of appeal against acquittal of accused was considerably limited, because presumption of double innocence of the accused was attached to the order of acquittal.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Accused had earned double presumption of innocence with the acquittal, firstly, that till found guilty he had to be considered innocent and secondly, his acquittal by Trial Court further confirmed the presumption of innocence.

Said Rasool v. Sajid and 3 others 2012 PCr.LJ 1699; Mst. Zahida v. Koki Khan and 2 others 2013 YLR 223; Abdul Ghafoor v. Zafid Wali 2011 P Cr. L J 1234; Fateh Muhammad Kobhar v. Sabzal and 4 others 2013 PCr.LJ 374; 2013 PCr.LJ 345 and PLJ 2009 FSC 284 rel.

(d) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance created reasonable doubt in a prudent mind about guilt of the accused entitled him to its benefit not as a matter of grace but as a matter of right.

Saleem Akhter Buriro, Additional PG, Sindh for the State.

Dilawar Hussain Khatna for Respondents.

Ashraf Ali Butt for the Complainant.

2019 P Cr. L J 1375

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

The STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

MEHARBAN and 4 others---Respondents

Criminal Appeal No. 10/P of 2014, decided on 10th April, 2019.

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

----S. 265-k---Acquittal of accused at any stage---Scope---Section 265-K Cr.P.C empowered the Trial Court to acquit the accused at any stage of the proceedings, if after hearing the prosecution and the accused it considered that there was no probability of the accused being convicted of any offence---Legislature, in its wisdom, had not left the question of recording evidence as a condition before taking action under S. 265-K, Cr.P.C.

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

----Ss. 452, 411 & 34---Criminal Procedure Code (V of 1898), S. 417---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Arms Ordinance (XX of 1965), S. 13---House trespass after preparation for hurt, assault, dishonestly receiving stolen property, common intention, haraabah, possessing illicit weapon---Appreciation of evidence---Appeal against acquittal---Accused along with absconding co-accused were charged under S. 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Ss. 452/411/34, P.P.C. read with S. 13, Arms Ordinance, 1965, by the complainant; accused were arrested and trial commenced in the Trial Court---Accused, during pendency of trial, were acquitted by the court under S. 265-K, Cr.P.C.---Validity---In the present case, complainant had exonerated the accused persons from commission of offence, therefore, it was futile exercise to linger on criminal proceedings in court, more particularly, the trial will not culminate on conviction of accused persons---Discretion exercised by the Trial Court was based on reasons that there was no probability of the accused being convicted of the offence---Admittedly, the case shall not end on conviction, therefore, proceedings against accused persons would be an abuse of the process of the court---Charged offence was non-compoundable and the Trial Court without invoking the provisions of S. 345 of the Code, for the sake of dispensation of justice had applied S. 265-K, Cr.P.C. for acquittal of the accused persons with plausible reasons reflected in the impugned order---Record showed that there was no infirmity, illegality or perversity in the impugned order of acquittal, which being based on sound and cogent reasons was maintained---Appeal was dismissed, in circumstances.

Malik Akhtar Hussain Awan, Assistant Advocate-General, Khyber Pakhtunkhwa for the State/Appellant.

Abdur Rauf Afridi for Respondent No.1.

2019 P Cr. L J 1480

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

HAROON RASHID and 4 others---Appellants

Versus

MUHAMMAD YOUSAF AFRIDI and 3 others---Respondents

Criminal Appeal No. 44-P of 2002, decided on 1st April, 2019.

(a) Criminal trial---

----Right of audience---Scope---Appeal against acquittal/conviction---Appellant or respondents being reluctant to surrender or appear, would lose right of audience and the appeal could be determined in absence of either.

Hayat Baksh and others v. The State PLD 1981 SC 268; Nazar Hussain v. The State 1985 SCMR 614 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal could only be interfered, if the conclusion drawn and reasons assigned by the Trial Court were speculative, artificial, arbitrary or a result of mis-reading and non-reading of evidence.

Mst. Anwar Begum v. Akhtar alias Kaka and 2 others 2017 SCMR 1710; Azhar Mehmood and others v. The State 2017 SCMR 135; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Nazar Hussain v. The State PLD 1985 SC 11 rel.

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

----Ss. 302(b) & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5 & 10---Criminal Procedure Code (V of 1898), Ss. 161 & 164---Qatl-i-amd, common intention, Zina liable to Hadd---Delay in recording statement of witness---Effect---In the present case, occurrence took place on 30th August, 2001, whereas the statement of witness under S. 161, Cr.P.C. was recorded on 7th September, 2001 and under S. 164, Cr.P.C. on the 8th September, 2001---No explanation had been offered to justify the delay in recording his statement---Delayed recording of statements made the case doubtful.

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

----Ss. 302(b) & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5 & 10---Qatl-i-amd, common intention, Zina liable to Hadd---Appeal against acquittal---Appreciation of evidence---Accused were charged for committing zina with the wife of deceased and murdering him---In the present case, the real son of deceased was star witness---Said witness had stated that he woke up on hearing the shrieks of his father and fire shots made by accused/respondent and that he had seen his father being scuffled with accused/respondent---Said accused succeeded to run away, who was chased by his father but he fell down near the door, whereupon his mother called his neighbour who called the workers of Mill, who informed the police---Witness also stated that his father was taken to hospital and a pistol left by accused and a shirt were taken into possession by the police---Testimony of said witness had suggested that he himself did not see the accused persons while firing as he was asleep and woke up after hearing the fire shots---As to whether accused directly fired or otherwise was not certain---Star witness was a boy of tender age who was taken by his uncles with them after the occurrence and not produced before police to get his statement recorded at the earliest---Said witness could have been tutored after recording of the confessional statements of accused persons---Statement of said witness could not safely be relied as false implication in the peculiar circumstances was possible---Neither Neighbour referred by star witness nor the Mill workers were produced before the court to corroborate the deposition of star witness---Non-producing such persons had adversely affected the prosecution version---Record showed that the confessional statement got recorded by the wife of deceased and co-accused could not be used against them, as corroboratory evidence, such as forensic and medical evidence was required---In the present case, neither any of the accused/respondent had been medically examined nor any semen grouping report had been procured to prove the offence of zina---Star witness also did not say a word regarding zina committed by accused persons---Impugned judgment did not suffer from any perversity or illegality, warranting interference by the court, in circumstances---Appeal was dismissed accordingly.

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

----Art. 129---Withholding material evidence---Effect---In case of non-production of material witnesses, inference could be drawn that had said witnesses stepped into the witness box, they would have not supported the prosecution case.

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

----S.164---Confessional statement as material incriminating evidence---Scope---Confessional statement had been considered as a material incriminating evidence, if found consistent with the other corroborative pieces of evidence.

Hashim Qasim and another v. The State 2017 SCMR 986; Muhammad Ismail and others v. The State 2017 SCMR 898; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Asif Mehmood v. The State 2005 SCMR 515 rel.

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

----Ss. 302(b) & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5 & 10---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention, Zina liable to Hadd---Appreciation of evidence---Confessional statement, recording of---Magistrate, who recorded the confessional statement had admitted that he did not provide sufficient time of reflection with intervals to the makers---Said witness had admitted that wife of deceased after recording confession was handed over to lady police constable accompanied by naib court---Co-accused after recording confession was handed over to naib court in uniform, which offended the entire procedure, rules and law, particularly when the certificate thereon had not been reduced in hand writing of recording Magistrate---Certificate regarding the mother tongue of the makers was silent---Voluntariness of the confessional statements was doubtful in circumstances.

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

----Ss. 302(b) & 34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.5 & 10---Qatl-i-amd, common intention, Zina liable to Hadd---Appreciation of evidence---Recovery of weapon of offence and torn shirt from the house of deceased---Reliance---Recovery of .30 bore pistol, had not been made on the pointation of accused---Recovery made from the house of deceased, even with the positive report, could add nothing to the case of prosecution---Recovery of torn shirt having the tag of a tailor could have been considered relevant, if the said tailor had come in the witness box and testified that he had stitched and tailored the shirt in question on the order by accused---Such recovery was inconsequential.

Nemo for Appellants.

Nemo for Respondents Nos. 1 to 3.

Arshad Ahmed, Additional Advocate-General, Khyber Pakhtunkhwa for Respondent No.4.

2019 P Cr. L J 1592

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

YOUNAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1/P of 2019, decided on 17th April, 2019.

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

----Ss. 395 & 412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Dacoity, dishonestly receiving stolen property, haraaba---Appreciation of evidence---Benefit of doubt---Prosecution case was that one person entered in the clinic of complainant (Doctor) and asked him to infuse drip as he had abdominal pain---Complainant refused to infuse him drip---In the meanwhile, four other persons duly armed with pistols entered the clinic, made him hostage, collected an amount of Rs.300,000/- lying on different places and also took out Rs.275,000/- from medical store, two and a half tola gold ornaments, two cell phones and one DVR screen---Written complaint was incorporated in FIR---Ocular testimony of the prosecution case hinged on sole evidence of complainant, who supported the contents of FIR in his deposition with clarification that since he had patched-up the matter with five co-accused, therefore, he was not willing to prosecute/charge them---Complainant intended to charge accused-appellant for commission of offence without mentioning any sufficient reason or cause of making compromise with five co-accused excluding the accused-appellant---Record transpired that the Trial Court on 19.11.2018, recorded the evidence of complainant and on the same day, in view of no objection of the complainant, had acquitted five co-accused, by invoking the provision of S. 265-K, Cr.P.C.---However, the case proceeded and prosecution examined six more formal witnesses---After acquittal of five accused charge was not amended by the Trial Court and remaining five unexamined prosecution witnesses deposed against all the six accused---Admittedly, no specific role in commission of offence had been assigned to the accused-appellant by the complainant---Accused-appellant was supposedly known to the complainant, who was his patient, possessing medicine prescription issued by the complainant earlier which certainly bore the name of accused-appellant---Undeniably, offences under S. 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and S. 412, P.P.C. were not compoundable---More particularly, the alleged offences were of grave and alarming nature against the society as a whole and could not be permitted to compound---Trial Court on the very day of recording deposition of complainant, by consent of the parties, invoked provision of 265-K, Cr.P.C. and acquitted five accused---Initially six accused were charged having common role in commission of dacoity---Question arose as to whether the evidence which had been disbelieved to the extent of five co-accused of the accused-appellant who had been acquitted by the Trial Court could be believed to the extent of accused-appellant---Recovery of robbed articles was allegedly made from acquitted accused as well as the accused-appellant---Evidence of complainant who was star witness of the prosecution could not be considered trustworthy or inspiring confidence beyond shadow of reasonable doubt---Circumstances established that the impugned judgment was result of complete misreading of evidence and no independent corroboration was available on record for maintaining the conviction and sentence of the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Afzal v. The State 2017 SCMR 1645 and Munir Ahmad and another v. The State and another 2019 SCMR 79 rel.

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

----S. 345---Compounding of non-compoundable offence---Scope---Non-compoundable offences could not be made compoundable---Provision of S. 345, Cr.P.C. could not be stretched by including non-compoundable offences.

(c) Criminal trial---

----Maxim "Falsus in uno, falsus in omnibus"---Applicability---Scope---Falsus in uno, falsus in omni bus was not applicable in dispensation of justice in criminal cases---Evidence disbelieved to the extent of acquitted co-accused could not be believed to the extent of the accused-appellant.

(d) Criminal trial---

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

Mian Qamar Gul Kakakhel for Appellant.

Malik Akhtar Hussain Awan, Assistant Advocate-General, Khyber Pakhtunkhwa for the State.

2019 P Cr. L J 57

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SHOAIB AHMAD and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeals Nos. 33, 34 and 36 of 2015, decided on 30th March, 2018.

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

----Ss. 302, 364-A, 377 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 32---Juvenile Justice System Ordinance (XXII of 2000), S.14---SRO No.572(I)/2012, dated 3-5-2012---Qatl-i-amd, kidnapping or abducting a person under age of fourteen, sodomy, common intention, act of terrorism---Trial by Anti-Terrorism Court---Accused persons, raised the objection that they being minors, their trial by Anti-Terrorism Court was coram non judice and they were to be tried under Juvenile Justice System Ordinance, 2000 and that case was not that of terrorism, but that of murder and was to be tried by the court of ordinary jurisdiction---Contentions of counsel for accused persons were wholly misconceived, as offence committed by minors could validly be tried by Anti-Terrorism Court as S.32 of Juvenile Justice System Ordinance, 2000 had provided that the said provision was in addition to and not in derogation of any other law---Contention that the trial of accused persons was coram non judice did not hold the field, thus repelled---Objection that case of accused persons was that of murder, therefore, was to be tried by the court of ordinary jurisdiction, was without foundation as notification SRO No. 572(I)/2012, dated 30-5-2012, had conferred the powers of Juvenile Court to the Judge, Anti-terrorism Court.

PLD 2006 Kar. 331 and Meraj Hussain v. Judge Anti-Terrorism Court Northern Areas Gilgit 2007 PCr.LJ 1011 ref.

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

----S. 6---Procedure of Juvenile Court---Interpretation, applicability and scope of S.6, Anti-Terrorism Act, 1997---Section 6 of the Act defines the offences falling in the category of "Terrorism"---Provisos to said section had shown that the section was divided into two main parts; the first part contained in S.6(1)(h) and (c) of the Act, deals with the mens rea and makes a mention of the "design" or the "purpose" behind an action and the second part falling in S.6(2) of the Act specifies that the action taken when coupled with the mens rea, would constitute an offence---Critical study of S.6(2) of the Act, depicts that the intention of legislature was very clear---If use of threat or action would create serious risk to the safety of the public or section of public; the same was designed to frighten general public and thereby prevented them from coming out and carry out their ordinary pursuit business, lawful trade, daily business or disrupted the civil life or tempo of life, same would definitely fall within the definition of "terrorism".

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

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

----Ss. 302, 364-A, 377 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, kidnapping or abducting a person under age of fourteen, sodomy, common intention---Appreciation of evidence---Crime detected through CCTV footage and accused was arrested, who disclosed the fact of burying the dead body of the deceased in a cave; which was later on recovered on the pointation of accused in the presence of marginal witness---Post-mortem on the dead body was conducted on the same day---Injuries on the person of the deceased, were sufficient to cause death and the time which elapsed between death and postmortem was more than 24 hours, which also coincided with the time of disappearance of the deceased child---Both the prosecution witnesses remained un-shattered despite lengthy and exhaustive cross-examination---After the amendment knocked in Art.164, Qanun-e-Shahadat, evidence procured through modern devices, was admissible in evidence---Last seen evidence was available in the shape of CCTV footage and it had also come on record that deceased was never seen alive till his dead body was recovered on the pointation of accused---Statement of prosecution witness, who was uncle of deceased, was also in line with the statement of other prosecution witness and both the statements were consistent on all material particulars---Weapon of offence (knife) recovered on the pointation of accused was sent to Chemical Examiner and the report was positive---One blood-stained stone was also recovered from the place of occurrence on the pointation of accused---Chemical Examiner also confirmed that the blood-stains present on the last worn clothes of the deceased and the one present on the stone, were of the same group---Site plan prepared by Investigating Officer and exhibited in court, was admissible in evidence---Case of accused, was not a case of kidnapping or abduction as on offer to purchase some fire crackers, the deceased himself willingly accompanied accused persons; it could not be said that deceased was either kidnapped or abducted as per mandate of S. 364-A, P.P.C.---Police report submitted under S.173, Cr.P.C., showed the motive of murder was that prior to the incident, accused were committing sodomy with the deceased---Motive of murder and such statement had not been challenged either way---Conviction under S.377, P.P.C., was valid and maintained---Conviction of accused under S.302, P.P.C., read with Ss.6 & 7 of Anti-Terrorism Act, 1997, was maintained and murder reference was answered in affirmative.

Muhammad Sharif v. State 1993 PCr.LJ 1817 ref.

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

----Arts. 39 & 40---Statement of accused made during Police custody---If such statement disclosed a certain fact, associated or concerned with the commission of offence the same was admissible in evidence.

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

----S. 364-A--- Kidnapping or abducting a person under age of fourteen---Applicability and scope of S. 364-A, P.P.C.---Court, in order to invoke S. 364-A, P.P.C. was first to see whether there was "kidnapping" within the meaning of S.361, P.P.C., which envisaged co-existence of minor taken or enticed away; minor was out of the keep of his guardians and keeping of minor was without his consent.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, act of terrorism--- Appeal for enhancement of sentence---Conversion of appeal into revision---Main accused was convicted and sentenced to death while two co-accused were awarded life imprisonment---Main accused had injured the deceased in a barbaric manner; two co-accused remained on guard and facilitated in the accomplishment of the task---Accused persons were not suffering from lack of maturity while committing the said brutality nor were unaware of the consequences---Where the circumstances justified that accused persons had acted prudently although in a perverse manner, neither juvenility nor the young age of accused would come to rescue them from the harshest penalty which could be given in such like cases---Accused persons were rightly convicted and sentenced; however, the age of two co-accused had been shown 13 years each respectively, their sentence of life imprisonment could not be enhanced to death---Young age in heinous offences was always not considered a decisive factor and the quantum of sentence would vary from case to case---Appeal was converted into revision and was dismissed, in circumstances.

Muhammad Idrees and others v. The State PLD 2004 SC 342 and 2003 PCr.LJ 2021 ref.

Burhan Wali for Appellants (in Criminal Appeal No. 33 of 2015).

Muzaffar-ud-Din for Appellants (in Criminal Appeal No. 34 of 2015).

Asadullah Khan and Raja Shakeel Ahmad for Appellants (in Appeal No. 36 of 2015).

Dy. A.-G. for the State.

2019 P Cr. L J 313

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ABDUL SAMAD---Petitioner

Versus

KAMRAN and another---Respondents

Criminal Rev. No. 29 of 2018, decided on 26th October, 2018.

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

----S. 7---Age, determination of---Non-constitution of Medical Board---Plea of juvenility not raised during investigation---Effect---Complainant assailed order of Trial Court whereby it declared the accused to be minor and ordered for separate trial---Plea of complainant was that constitution of Medical Board was a pre-requisite, which exercise had not been under taken by Trial Court; that accused had not taken the plea of juvenility during investigation and that plea of minority was an afterthought, raised after managing the supportive documents---Validity---Held; accused could not be penalized for raising the plea of juvenility at a later stage---School leaving certificate relied on by the accused was hotly contested by the complainant party---NADRA record had not been made part of the petition submitted before Trial Court---Medical Board could amplify the school leaving certificate which was susceptible to interpolation and manipulation and it was imperative to obtain opinion of Medical Board---Opinion of Medical Board though was not conclusive; but assisted the court in arriving at a just conclusion when juxtaposed with documentary evidence---Order passed by Trial Court was set aside and it was directed to pass a fresh order after taking into consideration the opinion of Medical Board.

(b) Criminal trial---

----Plea of juvenility by accused---Medical Board, constitution of---Opinion of Medical Board---Scope---Opinion of Medical Board was not conclusive; it assisted the court in arriving at a just conclusion when juxtaposed with documentary evidence.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 114 & 34---Qatl­i­amd, abetment and common intention---Bail, grant of, without application---Re-calling of bail order---Scope---Trial Court had released the accused on bail, without any application under S. 497, Cr.P.C.---Bail granted to accused was re-called by the Chief Court and accused was directed to be taken in custody.

Rana Shakeel Ahmad for Petitioner.

Jahanzeb Khan and Abdul Khaliq for Respondent.

2019 P Cr. L J 481

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUSSA KHAN---Petitioner

Versus

INSPECTOR-GENERAL POLICE GILGIT-BALTISTAN and 5 others---Respondents

Criminal Miscellaneous No. 167 of 2018, decided on 18th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent powers of Chief Court---Re-investigation---Scope---Complainant's son was murdered---First Information Report was lodged and accused persons were interrogated and sent to judicial lock up---Except one all accused persons were released on bail---Complainant claimed that a Jirga was held and during its proceedings respondents (another set of accused persons) confessed their guilt regarding murder of son of accused, but police did not arrest the said respondents---Validity---Although there was no bar to carry out a fresh investigation even after submission of challan, but circumstances of each criminal case varied from each other and no omnibus rule could be laid to be followed---Re-investigation was always carried out at the instance of influential people for obtaining favourable reports, which in no way assisted the courts in coming to a correct conclusion rather it created more complications---Investigation of a criminal case was sole domain of police and Chief Court did not ordinarily pass orders in matter regarding re-investigation of a criminal case until and unless some extraordinary circumstances existed---Petition, being not maintainable, was dismissed.

Raja Shakeel Ahmed for Petitioner.

Imtiaz Hussain for Respondents Nos.4 to 6.

DSP Taj for Respondents Nos. 1 to 3.

Dy. Advocate-General for the State.

2019 P Cr. L J 1142

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

ALI SARWAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 17, 18, 19 and Criminal Revision No. 8 of 2016, decided on 19th November, 2018.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention, possessing illicit arms---Appreciation of evidence---Dying declaration---Prosecution case was that the accused and co-accused, duly armed with Kalashnikov and pistol .30-bore opened fires on the victims, who were on motorbike, one died at the spot and other lost his life in the hospital---Record showed that there was no eye-witness of the occurrence---One of the deceased who was driving the motorbike and managed his escape from the place of occurrence in a very severe and critical condition had not made any statement under S. 161, Cr.P.C.---Alleged dying declaration was made in presence of close relative of the deceased and not before any independent/impartial person either at civil hospital or at DHQ hospital, which raised a question of suspicion about its genuineness---Record transpired that statement of deceased then injured was recorded by Police Constable and was signed by the witnesses---Said facts had been deposed by the prosecution witness, who was closely related to the deceased---Facts remained that one of the deceased was real brother of complainant and their sister was in wedlock of SHO of the concerned police station---In such situation, the chances of manipulation and fabrication could not be ruled out---Witnesses, who were closely related and complainant who remained with the injured did not attempt to ask any impartial person to be the witness of the dying declaration---Circumstances suggested that the dying declaration of the injured was not free from outside influence---No ocular or any other solid evidence except dying declaration was available which being of dubious nature was not worthy of any credence---Appeal was allowed in circumstances and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

1995 SCMR 614; 2001 SCMR 1474; PLD 2005 Pesh. 172; 2007 YLR 448 and 2015 MLD 939 ref.

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

----Art. 46---Dying declaration---Valuable piece of evidence---Conviction---Scope---Statement of deceased person could be treated as a dying declaration, which per se was good enough to maintain a conviction on a capital charge---For sustaining a conviction on a capital charge, the prosecution had to prove that the dying man was in full senses, conscious and alert and was able to make a coherent statement, which rang true, sound in substance and was free from any tutoring from outside.

PLD 2006 SC 255; 2011 SCMR 646 and 2012 PCr.LJ 1918 rel.

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

----Art.40---Joint recovery of crime weapons---Admissibility---Joint recoveries, under certain circumstances, were admissible in evidence if it could be easily deduced that the incriminating recoveries had been effected from a particular accused.

1980 SCMR 654 and PLD 1997 SC 408 rel.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention, possessing illicit arms---Recovery of weapons of offence---Non association of private witnesses--Reliance---Scope---Record showed that accused persons were arrested on 3.2.2014, whereas the recoveries were effected from accused on 8.2.2014---Crime empties were recovered from the place of occurrence on 3.2.2014, following day of the occurrence---Weapons of offence and crime empties were sent to Forensic Expert for opinion on 10.4.2014, with a delay of about two months and two days, without any legal justification---Record was silent as to where said incriminating articles were kept during that period---Moharrir of police station was not examined in the trial court to depose about the safe custody of the incriminating articles---Person who took the said articles to the Forensic Science Laboratory had not been cited in the calendar of witnesses---Recoveries were witnessed by the Police Officials---No independent witnesses had been associated with the recovery proceedings and no reasons had been shown by the Investigating Officer for non association of private witnesses---Crime empties and weapons of offence were recovered on different dates but sent together---Chances of manipulation could not be ruled out, in circumstances.

1992 SCMR 196 rel.

(e) Criminal trial---

----Witness---Police Official as witness---Police Officials were as good witnesses as any other witness of the general public---Non-association of private witnesses could be condoned if any plausible explanation was advanced by the Investigating Officer for non-association of private witnesses.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Medical evidence---Scope---Medical evidence though did not establish the identity of the assailant and could only be used to specify about the seat of injuries, but when instead of lending support to the prosecution case, it was in full contrast of the prosecution version, it would be resolved in favour of the defence.

Munir Ahmed and Imtiaz Hussain for Appellant (in all cases).

Raja Shakeel Ahmed for the Complainant (in all cases).

Dy. Advocate-General for the State (in all cases).

2019 P Cr. L J 1239

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ASGHAR---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 70 of 2019, decided on 26th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed arms---Bail, grant of---Further inquiry-Scope---Honour killing---Scope---Compromise affected between the parties---Scope and effect---Trial Court refused bail while not endorsing the compromise entered into by the parties---Final police report did not mention that the murder was one of the honour killing, rather pure/simple murder of a wife by her husband as alleged; secondly, the father and mother of deceased lady were not alive and the complainant, who was real brother of the deceased, had effected compromise with the petitioner---Grandfather of the children was taking care of the minors and they (children) were suffering because firstly, they had lost love and affection of their mother and secondly, a grandfather could not take the needed care of the children as compared to a real father (petitioner in the present case)---No useful purpose would be served by detaining the petitioner in jail---Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.---Petitioner was admitted to bail, in circumstances.

Munir Ahmad and Amjad Hussain for Petitioner.

Raja Shakeel Ahmad for the Complainant.

Dy. A.-G. for the State.

2019 P Cr. L J 1310

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHER KHAN and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 30 of 2019, decided on 4th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Penal Code (XLV of 1860), Ss. 427, 457 & 34---Act of terrorism, mischief causing damage to the amount of fifty rupees, lurking house trespass or house-breaking by night in order to commit an offence punishable with imprisonment, common intention---Bail, refusal of---Crime against society---Girls Primary School was burnt into ashes by unidentified accused persons---Petitioners (three in number) were neither nominated in the FIR nor any incriminating material evidence was available on record---Record revealed that petitioners were hardened criminals and their acts of burning the school had maligned the country at international level---Offence committed by the petitioners was an offence against the society---Chief Court observed that such type of hardened and desperate criminals could not and should not be let loose on the society---Bail was refused to the petitioners, in circumstances.

Burhan Wali for Petitioners.

Dy. Advocate-General for the State.

2019 P Cr. L J 1441

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SABIR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 37 of 2019, decided on 9th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of charas weighing 2700 grams---Bail, grant of---Further inquiry---Recovery of charas 'Garda'---Scope---Charas 'Garda' was not charas---Charas was extracted after baking/chemical process---Quantity of charas in "Garda" varied---Case of petitioner called for further inquiry--- Petitioner was admitted to bail, in circumstances.

Shahbaz Ali for Petitioner.

Dy. Advocate-General for the State.

2019 P Cr. L J 1643

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

CHAIRMAN NAB through Prosecutor-General Accountability---Appellant

Versus

NADEEM AHMAD and another---Respondents

Criminal Appeal No. 5 of 2019, decided on 18th March, 2019.

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

----S. 32--- Appeal--- Maintainability--- Limitation--- Ex-post facto sanction---National Accountability Bureau authorities filed appeal against judgment passed by Accountability Court but same was both delayed and without sanction of Chairman, NAB within mandatory and stipulated time period---Validity---Till filing of appeal no sanction was available on record and there was no concept of Ex-post facto sanction in National Accountability Ordinance, 1999---Sanction so accorded did not fulfill legal requirement of law and efforts were made to divert mind of court and cover-up inefficiencies of NAB authorities---High Court declared that appeal filed by NAB was not competent on account of unexplained delay of 3 days and having been filed without obtaining sanction/approval of Chairman, NAB which was mandatory in nature---Undated sanction placed on record did not meet legal requirement and was just an attempt to frustrate legal proceedings---Appeal was dismissed in circumstances.

2003 MLD 777; PLD 2006 Kar. 236; 2008 YLR 372; PLD 2012 SC 903 and PLD 2014 Sindh 490 ref.

PLD 1972 SC 271 rel.

(b) Administration of justice---

----Doing of an act---Principle---When law requires a particular act to be done in a particular manner, it was to be done in the way as provided and not otherwise.

Mirbaz Ali Faraz v. NAB 2016 PCr.LJ 1431 and Muhammad Nasir v. The State 2016 PCr.LJ 1871 rel.

Amin Khan, Special Prosecutor for NAB/State.

2019 P Cr. L J 1741

[Giglit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MIR ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 56 of 2019, decided on 26th February, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 169---Penal Code (XLV of 1860), Ss. 324 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-i-amd, common intention, possessing unlicensed weapon---Bail, grant of----Exaggerated version of the complainant---Effect---Complainant charged five persons in the FIR out of which two were charged for making fatal shots on both the injured---One of said two accused persons was found innocent during investigation and was released by the police under S. 169, Cr.P.C., which depicted that complainant had not stated the whole truth in the FIR---Where the complainant came forward with a story which during investigation was partially found false and also appeared that the complainant had exaggerated the story and told "half truth" the benefit of the "half lies" would go to the accused not as a matter of grace and/or concession but as a matter of right even at bail stage---Petitioner had been able to make out a case for the concession of bail---Petitioner was admitted to bail, in circumstances.

Amjad Hussain for Petitioner.

Dy. Advocate-General for the State.

2019 P Cr. L J 364

[High Court (AJ&K)]

Before Raza Ali Khan, J

MUHAMMAD SALEEM---Petitioner

Versus

MUNEEZA BEGUM and 6 others---Respondents

Application No. 62 of 2017, decided on 4th July, 2018.

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

----Ss. 145, 107, 150 & 561-A---Dispute concerning land likely to cause breach of peace information of design to commit cognizable offence, security for keeping the peace---Party in possession to retain possession until legally evicted---Power to attach subject of dispute---Pendency of civil litigation---Inherent powers of High Court---Scope---Respondent claimed that she was dispossessed from her property---Magistrate attached the property of petitioner and possession was handed over to the respondent---Plea of petitioner was that proceedings under S. 145, Cr.P.C. in presence of civil litigation were not competent---Respondent contended that no interim injunction was issued by the civil court nor was possession of property regulated---Validity---When Magistrate was satisfied that dispute likely to cause breach of peace existed regarding any land and considered it a case of emergency, he might attach the subject and order for its proper custody---Section 145, Cr.P.C. nowhere provided that in presence of civil litigation Magistrate could not exercise his powers conferred on him---Mere filing of suit did not debar the Magistrate to proceed under S. 145, Cr.P.C. unless interim injunction was issued or Receiver was appointed or decree was finally passed or possession was regulated by the civil court---Perusal of record revealed that parties had filed counter suits regarding the same land---Civil Court had decreed the suit of respondent and observed that respondent was in possession of property---Civil litigation was pending between the parties but possession had not been regulated by Civil Court neither it had appointed any Receiver nor decree was finally passed by civil court---Petitioner could not bring on record any proof regarding interim injunction---Proceedings initiated by Magistrate under S. 145, Cr.P.C. were not illegal and could not be cancelled in exercise of powers under S. 561-A, Cr.P.C.---Petition was dismissed, in circumstances.

Muhammad Siddique and another v. Muhammad Rashid and 3 others 2004 PCr.LJ 1096 and Saleem Akhtar v. Abdul Waheed and 6 others 2013 SCR 115 distinguished.

Gul Khan v. Muhammad Hafeez Khan and 9 others 1992 MLD 2105 and Abdul Aziz and others v. Mian Rafiuddin 1983 SCMR 928 rel.

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

----S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Power to attach subject of dispute---Pendency of civil litigation---Scope---Whenever Magistrate was satisfied that dispute likely to cause breach of peace existed regarding any land and considered it a case of emergency, he could attach the subject and order for its proper custody---Section 145, Cr.P.C. nowhere provided that in presence of civil litigation Magistrate could not exercise his powers conferred on him---Mere filing of suit did not debar the Magistrate to proceed under S. 145, Cr.P.C. unless interim injunction was issued or Receiver was appointed or decree was finally passed, or possession was regulated by the Civil Court.

Gul Khan v. Muhammad Hafeez Khan and 9 others 1992 MLD 2105 and Abdul Aziz and others v. Mian Rafiuddin 1983 SCMR 928 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---Proceedings initiated in accordance with law could not be cancelled in exercise of powers under S. 561-A, Cr.P.C.

Babar Ali Khan for Petitioner.

2019 P Cr. L J 41

[Islamabad]

Before Mohsin Akhtar Kayani, J

AAMIR SHAMAS---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No. 137 of 2018, decided on 11th October, 2018.

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

----S. 426---Exercise of power to suspend sentence---Prerequisites---Provision of S. 426, Cr.P.C. is meant to deal with suspension of sentence, release of accused on bail pending appeal---Prerequisite to exercise such powers is that when delay is apparent in decision of appeal. [p. 43] A

(b) Electronic Transactions Ordinance (LI of 2002)---

----Ss. 36 & 37--- Criminal Procedure Code (V of 1898), S. 426---Hacking of social media account---Suspension of sentence---Short sentence---Accused was convicted by Trial Court on commission of cyber crime and was sentenced to imprisonment of 3 years along with fine---Accused sought suspension of sentence on the plea of short sentence---Validity---Petitioner was prima facie charged with offences under Ss. 36 & 37 of Electronic Transactions Ordinance, 2002 as he allegedly hacked Facebook account of complainant---Accused created two other fake IDs of complainant and started harassing her by way of fabricating her pictures in loose manner and sent same to her, her father, relatives and friends which required appreciation to segregate legal and factual aspects after appreciating evidence during hearing of main appeal as to whether prosecution had substantiated charges against accused under law or not---Only one month had lapsed after conviction of petitioner which did not cross required time frame of six months in cases where 3 years' sentence was awarded---Application was dismissed in circumstances.

Nazeer Ahmed and 2 others v. The State 2005 PCr.LJ 657; Ilyas alias Billu v. The State 2008 MLD 312; Pervaiz Akhtar v. The State 1991 SCMR 1909; Soba Khan v. The State and another 2016 SCMR 1325; Makhdoom Javed Hashmi v. The State 2007 SCMR 246; Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403; Shahzaib Hassan and others v. The State and others 2013 Law Notes 88; Allah Warrayo alias Jabbal v. The State 2010 YLR 1178 and Waseemul Haque v. The State 1999 MLD 2382 ref.

Raja Rizwan Abbasi and Sohail Akhtar for Appellant.

2019 P Cr. L J 131

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD SHARIF and another---Petitioners

Versus

MUHAMMAD SADIQ and another---Respondents

Criminal Revision No. 38 of 2013, decided on 15th May, 2018.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 265-K, 145(7) & 431---Illegally and forcibly occupying land---Accused died pending revision---Abatement of revision---Scope---Dismissal of complaint---Accused, who died during pendency of revision, during his life time interfered into land of the petitioners and took over the possession of land illegally and petitioners filed complaint under Ss.3 & 4 of Illegal Dispossession Act, 2005---Two reports were obtained by the Trial Court---First one was submitted by the Investigating Officer and the other was submitted by Naib Tehsildar, which reports had clearly revealed that deceased/accused was in illegal occupation of land belonging to the petitioners---Contention of the petitioners, was that due to death of deceased accused, proceedings would not abate, but would continue against his legal heirs to the extent of illegal possession of disputed land---Material available on record had established that deceased accused, without any lawful authority, had illegally encroached upon the property in question---Trial Court was only required and prompted to form prima facie opinion of the title for the purpose of Illegal Dispossession Act, 2005, without prejudice to the final and authoritative adjudication on the matter of civil dispute, but there was no civil suit pending at that stage---Trial Court accepted application of accused filed under S.265-K, Cr.P.C., acquitted the deceased accused; whereas, law required that when the court had issued the process on being satisfied that prima facie case was made out and as such cognizance taken, could not be recalled or reversed, especially when charge had been framed by the Trial Court---Only course to be left in such eventuality to accused side was to assail such process before the appellate or revisional court as the law did not provide any power of review to the same court---Claim of the petitioners in such situation would survive despite the fact that accused was no more active and legal heirs of the deceased could be proceeded for the restoration of possession of the disputed land to the petitioners---Revision was allowed, impugned order passed by the Trial Court was set aside---Station House Officer concerned and Tehsildar, were directed to restore the possession of the disputed property of the petitioners within 30 days in accordance with the reports after demarcation on spot and would enter the same in revenue record for the future reference under the law.

Mst. Itrat Zahida and others v. President ABL 2006 SCMR 1287; Bondada Gajapathi Rao v. State of Andhra Pradesh AIR 1964 SC 1645; Sain Dass v. Devi Dass and others AIR 1973 Jammu and Kashmir 70; Misil Mirdha and others v. Abdul Rahim and others AIR 1934 Calcutta 787; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066 and Haji Jannat Gul v. The State and 3 others PLD 2001 SC 433 ref.

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

----S. 439--- Revisional jurisdiction of High Court--- Scope--- High Court, while exercising powers under S.439, Cr.P.C., could rectify wrongs, as revisional powers of High Court were wider than appeal and any order, which was based upon misconception of law and facts or contrary to earlier orders of the court, could be revised while exercising powers under S.439, Cr.P.C., as and when same was brought to the notice of the court.

Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775 and Mst. Zaib un Nisa v. Rehmat and 2 others 2011 PCr.LJ 666 ref.

Tahir Mehmood Abbasi and Raza Ullah Khan for Petitioners.

Raja Muhammad Rizwan Abbasi for Respondent No.1.

2019 P Cr. L J 194

[Islamabad]

Before Aamir Farooq, J

Lt. Col. (Retd.) IRFAN PIRZADA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 85 and 86 of 2017, decided on 27th September, 2018.

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

----S. 417---Appeal against acquittal---Limitation---Under S. 417, Cr.P.C. appeal lies against the acquittal within 30 days however, if the order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant, grants special leave to appeal from the order of acquittal, then the complainant may present such appeal to the High Court---Under subsection (3), S. 417, Cr.P.C., the limitation period for moving application for grant of special leave to appeal is 60 days from the date of order of acquittal.

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

----S. 417---Limitation Act (IX of 1908), Ss. 29 & 5---Appeal against acquittal---Limitation---Condonation of delay---Scope---Vide under S. 29 of the Limitation Act, 1908, S. 5 of the Act is not applicable, where the period of limitation is not provided in the Act but is governed by a special statute---Limitation period for filing of appeal against acquittal having not been provided by the Limitation Act, 1908 but under S. 417, Cr.P.C. hence S. 5 of the Limitation Act, 1908 would not apply.

The State through A.-G. Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544; Rashida Parveen v. State and 4 others PLJ 2003 Cr.C. (Lahore) 621; The State v. Asif Ali Zardari and another 1994 SCMR 798; Muhammad Hasham Khan v. The Chairman, Balochistan Service Tribunal and others PLD 1983 SC 262; Al-Haj Mian Ghulam Yasin v. Managing Director, A.K.L.A.SC. Muzaffarabad and another 1987 CLC 1307; The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdur Rehman 2005 SCMR 1544; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Maj. (Retd.) Qamar-ud-Din v. Muhammad Iqbal 2010 MLD 961 and Shahid Manzoor v. The State and others 2015 YLR 853 ref.

(c) Limitation Act (IX of 1908)---

----Ss. 5 & 14---Appeal filed before wrong forum---Condonation of delay---Sufficient cause---Scope---Negligence of the counsel in pursuing the remedy before a wrong forum is not a ground for condonation of delay.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2006 SC 872 rel.

Appellant in person.

Jan Muhammad Khan for Respondent.

Awais Haider Malik, State counsel.

2019 P Cr. L J 389

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Mian MUHAMMAD NAWAZ SHARIF---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 549-T of 2018, decided on 7th August, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 16-A(c) & 17(d)---Criminal Procedure Code (V of 1898), Ss. 426 & 561-A--- Transfer of cases--- Reference by Trial Court---Administration of justice---Applicant was accused facing trial in three references---Trial Court convicted and sentenced the applicant in one reference during pendency of two references---Accused sought transfer of cases on grounds that Trial Court had already disclosed its mind---Validity---After accused had filed applications before Accountability Court to recuse itself from hearing two references, Presiding Officer submitted application to the High Court requesting for said cases to be transferred---Presiding Officer also requested for someone else to be posted in his place---Case could not be thrust on a judge unwilling to hear it---High Court allowed transfer applications filed by accused and references were transferred---Application was allowed accordingly.

Terrance Williams v. Pennsylvania 2016 SCMR 1561; Sher Afzal v. Mst. Pervez Jan 2016 YLR 267; Ahmad Yar v. The State 2014 PCr.LJ 407; Suo Motu Case No.4/2010 PLD 2012 SC 553; Aftab Shaban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Shafi v. The State 1987 PCr.LJ 598; Muhammad Nawaz v. Ghulam Kadir PLD 1973 SC 327; Mohabat v. The State PLD 1960 Lah. 1187; Union of India v. Sanjay Jethi (2013) 16 SCC 116; Mt. Paro v. Chhaja Singh AIR 1934 Lah. 539; Sita Ram v. Balak Ram AIR 1933 Oudh 154; All v. Crown 1969 PCr.LJ 963; Ghulam Rasul v. Crown PLD 1951 FC 62; Hallyday v. United States 380 F.2d 270; Keating v. Superior Court of San Francisco 45 Cal. 2d 440; Murchison's case 349 US 133; Hugh M. Caperton v. A. T. Massey Coal Company 556 US 1; Syed Tahir Hussain v. Tayyab PLD 2009 Kar. 176; Muhammad Asif v. The State PLD 2014 Lah. 543; Independent Media Corporation v. Federation of Pakistan PLD 2014 SC 650; Mehboob Ali v. The State 2002 SCMR 224; Ashiq v. The State 1992 MLD 341; Gulzar Ahmad v. The State 1994 PCr.LJ 634; Muhammad Moosa v. Ghulam Qadir 2009 MLD 16 and General (R) Parvez Musharraf v. Nadeem Ahmad PLD 2015 SC 585 ref.

Khawaja Haris Ahmad, Saad M. Hashmi, Ayesha Hamid and Zaafir Khan for Applicant.

Sardar Muzaffar Ahmad Khan, Deputy Prosecutor-General, NAB along with Jahanzeb Khan Bharwana, Haider Ali Khan, Assistant Prosecutor-Generals, NAB, Muhammad Afzal Qureshi, Muhammad Ashar Awan, Irfan Ahmed Boola and Imran Shafique, Special Prosecutors NAB for Respondent No.1.

2019 P Cr. L J 472

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD HAYAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 564/B of 2018, decided on 25th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prevention of Electronic Crimes Act (XL of 2016), Ss. 9 & 10---Penal Code (XLV of 1860), Ss. 500 & 109---Glorification of an offence, cyber terrorism, defamation, abetment---Bail, grant of---Further inquiry---Lesser punishment---First Information Report was lodged against certain elements, including the petitioner, allegedly involved in anti-State activities through Social Media (Facebook, Twitter and alike) by putting up derogatory material against the Institutions of the State---Petitioner contended that corroboration through independent evidence was required to establish that material in question was actually put up by him---Validity---Petitioner was charged with Ss. 9 & 10 of Prevention of Electronic Crimes Act, 2016---Maximum punishment provided in S. 10 of Prevention of Electronic Crimes Act , 2016 was 14 years or fine---Lesser punishment was to be taken into account for the purpose of bail---Record revealed that under the identity created on social media, which purportedly was in the name of the petitioner, derogatory and anti-State material had been put up to malign the Institutions of the State and was deplorable , however, the usage of the social media on Facebook and Twitter etc. by the petitioner was question of evidence which could only be done at the stage of trial---Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.---Investigation was concluded and the petitioner was no more required for purpose of investigation---Petitioner was admitted to bail, in circumstances.

Mustafa Ali v. State 2014 PCr.LJ 1464 and Tariq Basher v. The State PLD 1995 SC 34 ref.

Dr. Babar Awan and Abdur Rahim Wazir for Petitioner.

Raja Khalid Mehmood Khan, Deputy Attorney General for the State.

Tahir Khan, Inspector, FIA.

2019 P Cr. L J 489

[Islamabad]

Before Miangul Hassan Aurangzeb, J

IROKO MERCY CHIMIZIE alias JEFF JACK MORE and others---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 145, 149 and 177 of 2017, decided on 22nd May, 2018.

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

----Ss. 419, 420, 468, 471 & 109---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Foreigners Act (XXXI of 1946), S. 14---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, violation of privacy of information, damage to information system etc., illegal entry into country---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the complainant was informed through e-mail that sender was legal attorney of deceased, who was civil engineer/contractor and handled many projects in foreign country---Said engineer had died along with his wife and daughter---Deceased had assets worth US Dollars 89 million and wanted to transfer the said assets to the complainant for the purpose of business---Sender of e-mail persuaded the complainant to pay US Dollars 500 to the legal advisor as bank account opening fee--- Complainant sent the said amount as advised by the sender of e-mail---Complainant later received a call on his mobile to deposit Rs.5,00,000 in the account of Mr. "A" so that the complainant could receive the assets of deceased engineer---Complainant deposited the said amount and thereafter realized that all that was a scam and he was defrauded of Rs. 4.3 million, hence the FIR---Record showed that e-mail was a curious document but no date of dispatch was mentioned in the e-mail---Complainant's e-mail address was not mentioned therein---No effort seemed to have been made by the Investigating Officer or the forensic expert to verify as to whether the e-mail was indeed received by the complainant---Said e-mail, did not mention that deceased engineer had 89 Million US Dollars in his Bank account---No explanation was furnished as to whether the complainant had at any stage prior to the e-mail communicated either through e-mail or otherwise with the sender---First communication from sender to the complainant was also not on the record---Computer of complainant was not even examined so as to ensure that the said e-mail was indeed received by the complainant---Investigating Officer, in his cross-examination, admitted that throughout the investigation, no evidence came on the record that any of the accused got illegal access to any information system or any of the accused after getting illegal access damaged the information system---Record transpired that accused could not be said to have committed the offence under S. 36 of the Electronic Transactions Ordinance, 2002---None of the accused persons gained or attempted to gain access to any information system with or without the intent to acquire the information contained therein or to gain knowledge of such information, when they were not authorized to gain access to such information---Even if the accused was considered to be the sender of the e-mail in question, it could not be said that by sending the e-mail, he had gained or attempted to gain access to any information system with or without the intent to acquire the information contained therein---No allegation against co-accused persons was levelled that they gained or attempted to gain access to any information system with or without the intent to acquire the information contained therein---Accused persons could not be convicted under S. 36 of the Electronic Transactions Ordinance, 2002 in circumstances---Stand taken on behalf of the accused that he had nothing to do with the e-mail from co-accused to the complainant was not believable, because it was in furtherance of the plan made in the said e-mail that accused contacted the complainant and started asking him to make payments---Accused was identified by the complainant as the person who had met him regarding the payments---Deposit of Rs.5,00,000/- in one account and Rs. 8,00,000/- plus Rs. 1,500,000/- in other account stand proved---Account holders could not come-up with any plausible explanation as to why the said amount was deposited in their account---Admittedly, said amount had been withdrawn by the account holders from their respective Bank accounts---Explanation given by account holder for the payment of Rs. 5,00,000/- into his account had not been substantiated---Conviction of accused awarded under S. 36 Electronic Transactions Ordinance, 2002 was set aside, in circumstances---Conviction under S. 420, P.P.C. was maintained but the sentence awarded for the offence under S. 420, P.P.C. was modified and reduced to two and a half years.

2014 SCMR 668 and PLD 2009 SC 809 ref.

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

----S.382-B---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471, 109---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Foreigners Act (XXXI of 1946), S. 14---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, violation of privacy of information, damage to information system etc., illegal entry into country---Period of detention to be considered while awarding sentence of imprisonment---Scope---Where a court decided to pass a sentence of imprisonment on the accused for the offence, it would take into consideration the period, if any, during which such accused was detained in custody for such offence---Said provision was couched in mandatory terms.

Government of Khyber Pakhtunkhwa v. Mehmood Khan 2017 SCMR 2044; Sajjad Ikram v. Sikandar Hayat 2016 SCMR 467 and Qaisar Khan v. The State 1998 MLD 633 rel.

Raja Rizwan Abbasi for Appellants (in Criminal Appeal No. 145 of 2017).

Arif Chaudhary and Sohail Akhtar for Appellants (in Criminal Appeal No. 149 of 2017).

Muhammad Arqam Arshad for Appellants (in Criminal Appeal No. 177 of 2017).

Waqar Ahmad Warraich for the Complainant.

Qaiser Masood, Additional Director Law, FIA with Shahid Majeed, Inspector, FIA for Respondents.

2019 P Cr. L J 563

[Islamabad]

Before Aamer Farooq, J

Brig. (Retd.) Syed ALI MOHSIN---Petitioner

Versus

FAZAL INAM SABIR alias SAAIEN INAM and others---Respondents

Criminal Revision No. 44 of 2015, decided on 15th November, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 247, 417(2), & 439---Revision---Maintainability---Non-appearance of complainant---Dismissal of complaint---Complainant was aggrieved of order passed by Trial Court whereby his complaint was dismissed under S. 247, Cr.P.C. and accused was acquitted---Validity---Complainant initiated proceedings under S. 3 of Illegal Dispossession Act, 2005 and Trial Court under S. 4 of Illegal Dispossession Act, 2005, took cognizance---Where contravention of S. 3 of Illegal Dispossession Act, 2005 was made out on a complaint, the offence was non-cognizable under S. 4(2), Illegal Dispossession Act, 2005---No provision of appeal in Illegal Dispossession Act, 2005 existed but Criminal Procedure Code, 1898, was applicable and provisions of appeal and revision provided in Criminal Procedure Code, 1898, were applicable by implication--- Complainant had remedy of filing application for leave to appeal within 60 days from date of order but he did not do so and instead instituted revision---Remedy was available to complainant under S. 417(2), Cr.P.C. but neither same was availed nor any request was made for conversion---Complainant failed to point out any illegality or error of law committed by Trial Court---Petition was dismissed in circumstances.

Syed Tahir Mehmood Shah v. Syed Iftikhar Hussain Shah and others 2012 PCr.LJ 927; M.N. Salar v. The State and 3 others 1998 PCr.LJ 1909; Mst. Akhtar Bano v. Umar Baz and another 2006 PCr.LJ 1101; Gul Hassan v. Muhammad Usman and 4 others 2012 PCr.LJ 268; Muhammad Amin v. M. Ilyas Dadoo 2008 YLR 2824; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Bahadur and another v. The State and another PLD 1985 SC 62; State v. Aftab Ahmad 2007 SCMR 1017; Habibullah and another v. The State and 9 others 2009 MLD 1162 and Karim Dad v. Muhammad and others 1980 PCr.LJ 1272 ref.

Muhammad Bakhsh v. Iqbal Ahmad alias Ahmad and another 1980 PCr.LJ 191; Zahoor and another v. Said-ul-Ibrar and another 2002 PCr.LJ 181 and Mst. Neelam Parveen v. The State and 7 others 2012 PCr.LJ 581 rel.

Muhammad Arif for Petitioner.

Qazi Adil Aziz for Respondents.

2019 P Cr. L J 594

[Islamabad]

Before Mohsin Akhtar Kayani, J

FEDERAL EMPLOYEES COOPERATIVE HOUSING SOCIETY through President---Petitioner

Versus

DIRECTOR GENERAL, FEDERAL INVESTIGATION AGENCY, ISLAMABAD and others---Respondents

Writ Petition No. 1966 of 2017, decided on 19th October, 2018.

Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 5---Co-operative Societies Act (VII of 1925), Ss. 54-A, 60, 61, 62 & 63---Special laws---Applicability---"Inquiry by Federal Investigation Agency" and "Registrar Cooperative Societies"--- Distinction---Cooperative Housing Society was aggrieved of inquiry initiated by Federal Investigation Agency---Plea raised by Society was that affairs of Society were within exclusive jurisdiction of Registrar, Cooperative Societies and jurisdiction of Federal Investigation Agency was barred---Validity---Restriction was imposed under S. 63 of Co-operative Societies Act, 1925 only to the extent of offenses mentioned in Ss. 60, 61 & 62 of Co-operative Societies Act, 1925---Any offence committed by officer or member of Society which fell within cognizance of police, FIA, NAB, Anti-corruption department, etc., such member/officer could not take shelter of Co-operative Societies Act, 1925---All offences under Co-operative Societies Act, 1925 were limited in nature and could be determined by Registrar whereas, other offences referred in Schedule of the Federal Investigation Agency Act, 1974 at Serial Nos. 1 and 5 had provided exclusive jurisdiction of FIA---Two special laws were of different nature which did not exclude each other and were not in conflict with each other rather were supplementing every aspect of objectives laid down in Preamble of Co-operative Societies Act, 1925---Both laws contained different sets of jurisdiction in their powers and functions---FIA authorities could take benefit of inquiry as well as findings of Registrar Cooperative Societies for purpose of prosecution against any individual who was public servant or had committed any offence referred in Schedule of Federal Investigation Agency Act, 1974---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Mubarik H. Siddiqu v. Sajjad Hassan Khan PLD 1992 Kar. 167; Muhammad Khalid v. NAB through Chief Administrator Multan and others 2017 SCMR 1340; Syed Mushahid Shah and others v. FIA 2017 SCMR 1218; Koh-e-Noor Industries (Pvt.) Ltd. v. Employees Old Age Benefit Institution 2016 PLC 107; Reference by Judge Special Court-II (C.N.S) 2006 PCr.LJ 921; Muhammad Saleem v. The State 2002 PCr.LJ 216; Baz Muhammad Kakar v. FOP through Ministry of Law and Justice PLD 2012 SC 923; Ghulam Haider v. Murad through Legal Representatives PLD 2012 SC 501; Abdul Jabbar v. The Chairman NAB through DG NAB PLD 2016 Pesh. 298; SNGPL through General Manager v. Director (Legal) President Secretariat (Public), Aiwan-e-Sadar, Islamabad and 2 others PLD 2018 Isl. 51 and Ashoka Marketing Limited v. Punjab National Bank and others (1990) 4 SCC 406 ref.

Raja Inaam Ameen Minhas for Petitioner.

Muhammad Haseeb Chaudhry, DAG and Mian Muhammad Faisal Irfan, AAG for Respondents Nos. 1 to 3.

Nasim Ahmed Shah and Aman Ullah for Respondent No.4.

Qaiser Masood, Additional Director (Law) FIA.

Riffat Hussain Malik for Interveners.

Wajahat Sultan, S.I, FIA Islamabad.

Date of hearing: 11th October, 2018.

2019 P Cr. L J 800

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

ISHTIAQ UR REHMAN---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT-I, ISLAMABAD and 2 others---Respondents

Writ Petition No. 2932 of 2018, decided on 3rd December, 2018.

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

----S. 23---Transfer of case to regular court pending application for bail before arrest---Scope---Cognizance of offence---Scope---Petitioner was charged for offence under S. 7 of Anti-Terrorism Act, 1997 in the FIR---Petitioner filed application for bail before arrest before Anti-Terrorism Court and during its pendency filed application for transfer of case to regular court, which was dismissed---Plea of petitioner was that pendency of the bail application meant that court had taken cognizance inasmuch as it had applied its mind to the facts and circumstances of the case---Validity---Section 23, Anti-Terrorism Act, 1997 showed that where cognizance was taken and the court was of the opinion that it had no jurisdiction in the matter, it could order transfer of the case for trial to court of competent jurisdiction---Court could only transfer the case for trial after taking cognizance and not for any other purpose---Trial Court, in the present case, had not yet taken cognizance of the case and the stage for determination regarding transfer of the case for trial had not yet arisen, hence the application under S. 23, Anti-Terrorism Act, 1997 was premature---Trial Court had rightly observed that investigation in the matter was underway and any finding/observation at bail stage regarding applicability of provisions of Anti-Terrorism Act, 1997 would amount to interfering in investigation---Constitutional petition, being without merit, was dismissed.

Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892 rel.

Khan Javed Khan v. State 2017 YLR 461 and Abdur Rehman v. Ghazan and 5 others 2005 MLD 954 not fol.

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

----S. 23---Transfer of case to regular court---Scope---If, after taking cognizance of an offence Anti-Terrorism Court is of the opinion that the offence is not a Scheduled offence, then it can order transfer of the case for trial of such offence to any court having jurisdiction under the Code of Criminal Procedure, 1898.

(c) Words and phrases---

----"Cognizance"---Meaning---Application of mind to any matter.

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

----S. 190---Cognizance of offence by Magistrate---Scope---Magistrate can take cognizance of an offence: (i) upon receiving a complaint of facts, which constitute such offence; (ii) upon a report in writing of such facts made by any police officer; and (iii) upon information received from any person other than a police officer or upon his own knowledge or suspicion.

Raja Rizwan Abbasi and Sohail Akhtar for Petitioner.

Qausain Faisal Mufti, Sadaqat Ali Jahangir, State counsel and Muhammad Zameer, Inspector for Respondents

2019 P Cr. L J 852

[Islamabad]

Before Mohsin Akhtar Kayani, J

ADIL KHAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 115 and Criminal Revision No. 101 of 2017, decided on 17th September, 2018.

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

----Ss. 4(l), 157, 160 & 161---Investigation---Necessary ingredients---Investigating officer, duties of---Investigation of case does not mean that after registration of FIR truth has to be extracted from incriminating material---Investigation generally consists of steps: Proceedings on the spot; ascertaining facts/circumstances of case; discovery of arrest of suspended offender; collection of evidence relating to commission of offence and formation of opinion as to trial of the case---Investigating Officer is to send its final report to the court---Provisions relating to Ss. 157, 160 & 161, Cr.P.C. dealing with investigation have provided mechanism of check and balance so that a fair and impartial investigation is conducted within framework of such provisions and also without fear or nepotism and favoritism---Police officer was expected to act fairly, honestly and without any biases.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss. 4(l), 157 & 160---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence--- Benefit of doubt--- Withholding of evidence---Suicide/culpable homicide---Determination---Accused was alleged to have committed murder of his wife and after trial he was convicted and sentenced to imprisonment for life---Plea raised by accused was that deceased had committed suicide---Validity---Entire case suggested possible suicide of deceased and Investigating Officer recorded certain observations in inquest report on day of occurrence of his first visit---Best available evidence was of family members/residents of place of occurrence, who were neither produced nor even referred and same had given rise to situation that best available evidence was withheld by Investigating Officer in terms of Art. 129(g) of Qanun-e-Shahadat, 1984---Benefit of doubt must be given to accused as a matter of right and not as a matter of grace and even there is no requirement to suggest many circumstances to create a doubt as even a single circumstance creates a reasonable doubt in a prudent mind about guilt of accused makes him entitled to its benefit---High Court set aside conviction and sentence awarded to accused as prosecution failed to prove its case against accused beyond reasonable doubt and accused was acquitted of charge---Appeal was allowed under circumstances.

Muhammad Rizwan v. The State and others 2018 MLD 410; Muhammad Tufail v. The State PLD 2002 SC 786; Haji Qasim Khan v. Kabir Khan and others 2018 YLR 282; Nooro alias Noor Muhammad Sehar v. The State 2018 PCr.LJ Note 52; Muhammad Riaz's case 1996 PCr.LJ 150; Mir Muhammad's case 1972 PCr.LJ 1108; Saeed Ahmad v. The State 2015 SCMR 710; Nasrullah alias Nasroo v. The State 2017 SCMR 724; Abdul Majeed v. The State 2011 SCMR 941; Panoon v. The State 2016 YLR Note 44; Ali Sher v. The State 2008 SCMR 707; Sauleh Muhammad v. The State 2017 PCr.LJ 1391; Muhammad Iqbal v. Abid Hussain alias Mitto 1994 SCMR 1928; Muhammad Tasgheer v. Hafiz Zulqarnain and 2 others PLD 2009 SC 53; Muhammad Ikram v. The State 2009 SCMR 230; Tariq Pervaiz v. The State 1995 SCMR 1345; Haji Kasim Khan v. Qadeer Khan 2018 YLR 282 and Arshad Khan v. The State 2017 SCMR 564 rel.

Raja Rizwan Abbasi and Sohail Akhtar for Appellant (in Criminal Appeal No. 115 of 2017).

Fayyaz Ahmad for Respondent No.2 (in Criminal Appeal No.115 of 2017).

Fayyaz Ahmad for Petitioner (in Criminal Revision No. 101 of 2017).

Raja Rizwan Abbasi for Respondent No.1 (in Criminal Revision No. 101 of 2017).

Sarfraz Ali Khan, State Counsel (in both cases).

2019 P Cr. L J 909

[Islamabad]

Before Athar Minallah, J

Mst. SAMINA KHATTAK and others---Petitioners

Versus

SHO, POLICE STATION KOHSAR and others---Respondents

W.P. No. 475 and Criminal Misc. No. 02/H of 2015, decided on 27th February, 2015.\

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

----Ss. 361, 363 & 34---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors---First Information Report, quashing of---Petitioner was mother of minor children and was aggrieved of registration of FIR by her ex-husband alleging kidnapping of their minor daughters---Validity---Complainant was aware that custody of minors was taken by natural guardian, i.e., mother from their maternal uncle---Complainant had admittedly not approached a court of competent jurisdiction to obtain custody of minors---No lawful order was available on record giving custody of minors to complainant who was not a natural guardian---Complainant did not hesitate in naming several other family members/relatives of petitioner to harass them as well---Contents of FIR left no doubt whatsoever that, let alone ingredients of S. 361, P.P.C. no criminal case was made out for attracting punishment under S. 363, P.P.C.---Complainant not being a natural guardian was not declared as lawful guardian by any court having competent jurisdiction in this regard--- Police authorities had no jurisdiction in interfering with a purely family dispute, related to custody of minors between their parents; it was within exceptions to general rule that courts neither interfered in investigations nor quash criminal case---FIR was quashed in circumstances.

Kausar Parveen v. The State PLD 2008 Lah. 533; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401; Rehmat Ali and others v. Ahmad Din and others 1991 SCMR 185; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Mst. Nadia Parveen v. Mst. Almas Noreen PLD 2012 SC 758; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Naziha Ghazali v. The State and another 2001 SCMR 1782 and Mst. Khalida Perveen v Muhammad Sultan Mehmood PLD 2004 SC 1 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Fair trial---Unwarranted references made to the courts in the FIRs---Effect---Such reference of courts in FIR could result in denial of the right to a fair trial and due process and violation of the fundamental right guaranteed under Art. 10-A of the Constitution---High Court further held that unwarranted references in FIR to a court was likely to cause miscarriage of justice and therefore, illegal---High Court directed that in case the name of a court is to be mentioned in FIR, it was necessary that permission of respective Registrar was sought in writing before the registration thereof.

Mian Muhammad Zafar Iqbal for Petitioners (in W.P. No. 475 of 2015).

Iqbal Khattack, Petitioner (in Criminal Misc. No. 02/H of 2015).

2019 P Cr. L J 997

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

Mst. ASHI MUNIR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, RAWALPINDI and others---Respondents

W.P. No. 674 of 2018, decided on 10th December, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 23---Caution on immovable property---Bona fide purchaser---Scope---Petitioner was aggrieved of order passed by Accountability Court whereby restriction on transfer of plot was declined---Validity---Petitioner was not an accused nor proceedings were pending against her either before NAB or before Accountability Court---Original allottee nor subsequent purchasers were proceeded against under National Accountability Ordinance, 1999 and they were not accused in trial pending before Accountability Court---National Accountability authorities had not claimed that petitioner was a relative or associate of one of accused against whom trial was pending or that she in any manner was acting on behalf of an accused---NAB authorities could not point out any provision in National Accountability Ordinance, 1999 which could have created a clog or had restrained petitioner from transferring plot or dealing with it in any manner---High Court set aside letter in question as provisions of S. 23 of National Accountability Ordinance, 1999 were not attracted in case of the plot and said letter was issued without lawful authority and jurisdiction--- Constitutional petition was allowed in circumstances.

Khan Muhammad Mahesar v. National Accountability Bureau (Sindh) 2010 PCr.LJ 579 and Chaudhry Muhammad Akram Warraich v. Chairman, National Accountability Bureau, Islamabad 2010 YLR 2766 rel.

Sher Afzal Khan Babar for Petitioner.

Irfan Bhoola, Special Prosecutor NAB.

Qaiser Abbas, Vice counsel for Respondent No.2.

Qasim, A.D./I.O., NAB.

2019 P Cr. L J 1059

[Islamabad]

Before Aamer Farooq, J

Dr. Syed IQBAL RAZA and others---Petitioners

Versus

JUSTICE OF PEACE, ISLAMABADand others---Respondents

W.Ps. Nos. 3750 and 2633 of 2018, decided on 21st February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Intellectual Property Organization of Pakistan Act (XXII of 2012), Ss. 13, 17 & 18---Federal Investigation Agency Act, 1974 (VIII of 1975), S. 3---Ex-officio Justice of Peace---Infringement of copyright---Scope---Petitioner complained infringement of copyright and sought direction to FIA under S. 22-A, Cr.P.C. for registration of criminal case---Justice of Peace dismissed the application---Respondent challenged the inquiry being conducted by FIA---Validity---Tribunal created under Intellectual Property Organization of Pakistan Act, 2012 had exclusive jurisdiction to try offences with respect to intellectual property laws---Section 17 of Intellectual Property Organization of Pakistan Act, 2012 provided that Tribunal had, in exercise of its criminal jurisdiction, power to try offences made punishable under Intellectual Property Organization of Pakistan Act, 2012 and for the said purpose, could exercise same powers as were vested in the Court of Sessions under Cr.P.C.---Subsection (4) of S. 17 provided that no Court, other than Tribunal, had jurisdiction with respect to any matter to which the jurisdiction of the Tribunal extended under Intellectual Property Organization of Pakistan Act, 2012---Tribunal had been conferred with the power to try an offence---Exclusivity of jurisdiction was provided in subsection (2) of S. 18, Intellectual Property Organization of Pakistan Act, 2012---Section 13(xix) & (xx) of the Act provided powers and functions of Intellectual Property Organization whereunder it had the exclusive power to initiate and conduct inquiries/investigation/proceedings relating to offences arising out of Copyright Ordinance, 1962---No cognizable offence was made out and the order passed by Justice of Peace did not suffer from any error of law---Inquiry being conducted by FIA was declared to be without jurisdiction and lawful authority---Constitutional petitions were disposed of accordingly.

Shahbaz-ud-Din Chaudhry and 3 others v. The Director, FIA, CBC, Lahore and 2 others 1999 YLR 678; The State through , P.S. FIA Corporate Crime Circle, Karachi v. Tahir Alam and another 2017 CLD 1535; Majad Ali v. Director General, FIA, Islamabad and 3 others KLR 2016 Criminal Cases 190 and Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 distinguished.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218; Iftikhar Hussain and others v. Government of Pakistan and others 2001 PCr.LJ 146; The State v. Azmat Ali and others 2017 CLD 519 and Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1979 PCr.LJ 1584 ref.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 and The State through Deputy Attorney General v. Muhammad Amin Haroon and 14 others 2010 PCr.LJ 518 rel.

Salman Safdar for Petitioners (in W.P. No. 2633 of 2018).

Raja Rizwan Abbasi for Petitioners (in W.P. No. 3750 of 2018).

2019 P Cr. L J 1176

[Islamabad]

Before Aamer Farooq and Moshin Akhtar Kayani, JJ

Mst. JAMILA---Appellant

Versus

The STATE---Respondent

Jail Appeal No. 118 of 2018, decided on 7th March, 2019.

(a) Oaths Act (X of 1873)---

----S. 5---Statement of accused recorded on oath---Reliance---Scope---Trial Court had recorded the statement of accused-appellant on oath, which was illegality---Taking of oath by the accused was itself violation of S. 5 of Oath Act 1873---Such kind of violation was not curable under the law.

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

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

----Art. 163---Special oath---Applicability---Article 163 of the Qanun-e-Shahadat, 1984 provided a mechanism to accept or deny the claim on Oath, although it was different from Oaths Act, 1873---Article was applicable in the civil proceedings only---Criminal cases could not be decided on Oath.

Mst. Bashiran Bibi v. Ghulam Mohy-ud-Din and others PLD 1990 SC 83 and Abdul Sattar and others v. The State 1995 PCr.LJ 1793 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 364 & 164---Juvenile Justice System Ordinance, (XXII of 2000), S. 11-C---Possession of narcotic---Appreciation of evidence---Statement of accused recorded on oath---Scope---Release of juvenile on probation---Two packets of charas from each accused had been recovered, total weighing 05 Kilograms---Record showed that accused-appellant was a young girl, who had stated to be born on 04.02.2001 and presently she was hardly 19 years old---Accused/girl was arrested on 02.12.2016 as per judicial record---Record reflected that accused was 17 years old at the time of alleged occurrence, but the Trial Court had not considered her juvenility in terms of Juvenile Justice System Ordinance, 2000 and even not referred that aspect, which was the key factor while determining the quantum of punishment---Record transpired that the Trial Court had not made any effort to peruse the certificate of test/analysis of the laboratory of Drugs Control and Traditional Medicines dated 09.01.2017, which referred the person holding four packets nominated in the case as co-accused---No report showed that the sample had ever been taken from the charas recovered from the appellant and the same was sent for the purposes of chemical examination---Trial Court was bound to call the evidence, although the accused confessed her guilt by way of recording confessional statement---Court had to call the evidence to clear its conscience, so that the offence with which accused was charged could be thrashed out by way of evidence---Circumstances established that Trial Court while awarding the sentence to the accused-appellant, who was admittedly a juvenile and earned certain rights under Juvenile Justice System Ordinance, 2000, had not given her due right---Trial Court had passed the conviction in a mechanical manner---Statement of accused-appellant regarding her date of birth as 04.02.2001 as well as admission on the part of Investigation Officer regarding the accused-appellant being juvenile at the time of arrest the special law came into play providing reduction of period of imprisonment in terms of S. 11(c) of the Juvenile Justice System Ordinance, 2000---Entire legal proposition revolved around the illegal oath conducted by the Trial Court while recording her confessional statement, who was juvenile at the time of occurrence---Even the Trial Court had not adopted due measures to conduct the trial in terms of Juvenile Justice System Ordinance, 2000---Said defects were neither curable nor fell within the ambit of irregularities, the appeal was allowed by setting aside the impugned judgment and matter was remanded to the Trial Court to decide it afresh.

Whishal Masih v. The State and others 2017 YLR 2031; Mian Khan v. The State PLD 2014 Pesh. 127; Ghulam Qadir v. Additional Session Judge and others PLD 2012 Lah. 345; 1989 MLD 1514; Hazrat Bilal v. The State and another 2013 PCr.LJ 800; Naseebullah v. The State PLD 2014 Pesh. 69; Muhammad Alamgir v. The State 2011 YLR 341; Shahrukh v. Bashir Ahmed and another 2013 PCr.LJ 584; Faisal Aleem v. The State PLD 2010 SC 1080 and Ghulam Murtaza v. The State PLD 2009 Lah. 362 rel.

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

----S. 265-E---Plea of guilt---Sentence---Scope---Court was not bound to pass conviction or sentence merely on confessional statement with reference to S. 265-E(2), Cr.P.C.---If the charge of an offence carried capital punishment of death or transportation of life, the court was required to examine the prosecution evidence, even if the guilt was admitted by the accused in response to a charge.

Loung v. The State 1976 PCr.LJ 204 and Habib-ur-Rehman v. The State 1997 PCr.LJ 1930 rel.

Qurat-ul-Ain Ayesha for Appellant and Appellant in person.

SadaqatAli Jahangir, Ch. Ehtasham ul Haq, SPP, ANF and Munir, ASI for the State.

2019 P Cr. L J 1244

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD ANWAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 77, Criminal Revisions No. 60 and Civil Revision No.49-M of 2012, decided on 28th February, 2019.

(a) Limitation Act (IX of 1908)---

----Ss. 5 & 29---Limitation---Condonation of delay---Scope---If a particular statute provided period of limitation, application under S. 5 of Limitation Act, 1908 for condonation of delay was not maintainable in the light of S. 29 of the Limitation Act, 1908.

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

----S. 489-F--- Criminal Procedure Code (V of 1898)---Ss. 417 & 249-A---Appeal against acquittal---Appreciation of evidence---Complainant lodged FIR against the accused stating that accused had issued cheque to him, which was dishonoured---Trial Court acquitted the accused under S. 249-A, Cr.P.C.---Validity---In the present case, during the course of trial settlement/compromise was tendered in evidence---Prosecution did not allege or prove dishonesty on the part of the accused---Complainant had reiterated the nature of transaction between the parties---Tendering of cheque and dishonouring had been categorically stated by the complained but from the entire reading of his examination-in-chief dishonesty was not borne out---Prosecution had failed to prove the mens rea, which was one of the essential elements, hence, it failed to prove the offence---Conviction recorded against the petitioners were not tenable, hence, merited setting aside---Criminal appeal was allowed and accused were acquitted of the charges, in circumstances.

Malik Safdar Ali v. Syed Khalid Ali and 2 others PLD 2012 Sindh 464; Mian Allah Ditta v. The State and others 2013 SCMR 51; Muhammad Afaq Shamsi and 8 others v. National Accountability Court through Chairman National Accountability Bureau and 4 others PLD 2011 Kar. 24 and Messrs Ittefaq Foundries (Pvt.) Limited and 4 others v. Federation of Pakistan through Secretary, Ministry of Law, Islamabad and 2 others 2015 CLD 1274 ref.

Malik Safdar Ali v. Syed Khalid Ali and 2 others PLD 2012 Sindh 464; Basar Khan v. The State and another 2009 PCr.LJ 964; Shah Fahad and another v. The State 2014 YLR 2241 and Maj. (Retd.) Javed Inayat Khan Kiayni v. The State PLD 2006 Lah. 752 rel.

Ms. Zareen Kanwal for Petitioner (in Criminal Revision No. 60 of 2012).

Saad Hassan for Petitioner No. 2 (in Criminal Revision No. 49 of 2012).

Kamran Amjad Kayani for Respondent No.2 (in Criminal Revision No. 60 of 2012).

Kamran Amjad Kayani for Appellant (in Criminal Appeal No.77 and Revision No. 49 of 2012).

Ch. Zaheer Farooq, State counsel.

2019 P Cr. L J 1316

[Islamabad]

Before Mohsin Akhtar Kayani, J

ALLAH DITTA alias DITTU---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 99 of 2017, decided on 19th December, 2018.

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

----Ss. 302(b), 376, 201 & 34--- Qatl-i-amd, rape, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Accused was charged for committing murder of the daughter of the complainant---Record showed that Police Officer along with other Police Officials found the dead body of a minor girl lying in a gunny bag and took the same into possession---Prosecution had produced a witness of wajtakar, who stated that on 21.11.2008, he along with other person had seen accused-appellant going while carrying a gunny bag in his right shoulder, whereas on 13.01.2009,he heard the news of recovery of dead body of deceased from a Barsati Naala---Said witness had seen the accused outside the village upon a passage and the direction referred in his cross-examination regarding Dera of milk seller and Barsati Naala was in opposite direction---Witness had seen the accused from fifty meters from Barsati Naala---All the said aspects gave rise to a difficult situation in which it was not possible to identify a person who was earlier not known by the witness, especially in the late hours of night, when no light was referred in his statement---Statement of said witness seemed to be doubtful---Medical report of the dead body revealed that deceased died due to multiple injuries---Said aspect of the medical evidence played a significant role in the entire evidence and it related to the confessional statement of accused-appellant, wherein, he had stated that he dislocated the neck of deceased after strangulation---Said aspect had been confirmed by Medical Officer in his statement, therefore, the statement of accused was a key factor in the entire prosecution case---Record transpired that accused had been confronted with the confessional statement during his statement recorded under S. 342, Cr.P.C., wherein, accused had clearly expressed his retraction from the confessional statement recorded prior to trial---Mere retraction of confessional statement in statement under S. 342, Cr.P.C. did not absolve accused, especially when his confessional statement recorded by Magistrate revealed different corroborative pieces of evidence, which linked accused with the heinous crime of murder of minor deceased---Motive had not been established---Even wajtakar witness was a chance witness, therefore, while considering said two factors as mitigating circumstances and the age of accused at the time of commission of offence as of less than eighteen years, who fell within the definition of "child" in terms of S. 2 of Juvenile Justice System Ordinance, 2000, therefore, the appeal was partly allowed and sentence awarded to the accused under S. 376, P.P.C. was set aside as charge under S. 376, P.P.C. had not been proved---Conviction and sentence awarded to accused under other sections was maintained.

(b) Criminal trial---

----Witness---Chance witness---Statement of chance witness---Scope---Statement of chance witness could not be believed if it was not verified from any independent source.

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

----Ss. 302(b), 376, 201 & 34---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, rape, causing disappearance of evidence of offence, common intention ---Appreciation of evidence---Confessional statement recording of---Record showed that confessional statement of accused-appellant was recorded by Magistrate---Said statement was based upon true facts, recorded with full conscious responsibility and fulfilled the requirements of voluntariness---No element of coercion, undue influence or pressure on accused-appellant was seen---Although, accused-appellant was a juvenile at the relevant time and the statement recorded by him had fully covered the procedural and legal requirements of law to be called as confessional statement, especially, when the same was corroborated with the medical evidence and no illegality or irregularity in recording of the confessional statement was found---Magistrate had been cross-examined at length but no fruitful result had been achieved by the defence side---Accused was convicted accordingly.

Hashim Qasim v. The State 2017 SCMR 986; Muhammad Ismail v. The State 2017 SCMR 713 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----S. 164---Confessional statement, retraction of---Scope---Retracted confession could be relied upon provided it got corroboration on material points.

Muhammad Talha Hussain v. The State PLD 2008 SC 115 and Nazir alias Wazir v. The State PLD 2007 SC 202 rel.

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

----Ss. 302(b), 376, 201 & 34--- Qatl-i-amd, rape, causing dis-appearance of evidence of offence, common intention---Appreciation of evidence---Recovery of bucket and chappal of deceased on the instance of accused---Reliance---Scope---Record showed that on 27.01.2009, accused-appellant in presence of official witness got recovered the bucket used by deceased to fetch milk, which was taken into possession---Similarly, on 30.01.2009, accused-appellant pointed out and got recovered chappal of deceased---Said articles were identified by the parents of deceased and even they had been cross-examined in this regard but defence had not achieved any discrepancy---Although, the bucket and chappal were of ordinary nature and easily available in open market, but that did not mean that the prosecution had foisted these recoveries upon accused-appellant.

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

----Ss. 302(b), 376, 201 & 34--- Qatl-i-amd, rape, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Medical evidence---Lady Medical Officer, who conducted post-mortem of the deceased had stated that rape could be seen as per external genitalia---Similarly, she had also stated that genitalia were widened and opened---During the course of cross-examination, Medical Officer had acknowledged that even if the dead body was submerged in water, swabs could be taken for detection of semen, but that could be negative---In the present case, swabs were tested to be positive---Said evidence of Medical Officer was to be seen in the light of Chemical Examiner's Report, where it had been mentioned that "semen was detected in the swabs"---However, the said swabs, although, confirmed the spermatozoa in the Chemical Examiner Test Report but the entire record was silent qua the grouping of semen---No report had been produced by the prosecution in which DNA had been confirmed---If classification or grouping of semen was not conducted in a rape case, it could not be proved that particular accused person had committed the offence---Prosecution was bound to discharge that onus positively as required under the law---Despite the observations made by Medical Officer on physical examination of deceased, the opinion of rape could not be substantiated through technical evidence of chemical and forensic report of DNA---Said aspect delinked the allegation of rape with deceased by accused-appellant---Even otherwise, the technical aspect had to be seen in the light of confessional statement of accused-appellant, who categorically admitted that he had not raped the minor girl/deceased---Charge of rape had not been proved against accused-appellant, in circumstances.

Allah Ditta and others v. The State and others 2017 PCr.LJ 789; Tanveer Ahmad v. The State and others 2016 MLD 1219 and Mst. Zohra Bibi v. The State and others 2013 PCr.LJ 772 rel.

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

----Ss. 2(b) & 4---Jurisdiction of Juvenile Court---Scope---Legislature had promulgated the Juvenile Justice System Ordinance, 2000 to safeguard the rights of minors involved in criminal cases---Section 2(b) of the Juvenile Justice System Ordinance, 2000 narrated that "child" was a person who at the time of commission of offence had not attained the age of 18 years and his trial had to be conducted in terms of S. 4 by the special court constituted for juvenile offenders.

Faisal Saleem v. The State PLD 2010 SC 1080; Muhammad Aslam and others v. The State and others PLD 2009 SC 777; Qamar Hussain Shah v. The State PLD 2006 Kar. 331; Asghar Khan v. The State 2012 PCr.LJ 142 and Rehmatullah v. The State 2015 PCr.LJ 1163 rel.

Mian Asad Hayat Awan for Appellant.

Sardar Ali Khan for the Complainant.

Sadaqat Ali Jahangir, State Counsel.

2019 P Cr. L J 1423

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

MOHAMMAD MISKEEN---Appellant

Versus

The STATE and others---Respondents

Jail Appeal No. 29 of 2011, decided on 13th May, 2019.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing mutalahimah---Appreciation of evidence---Accused was charged for committing murder of two persons and injuring a person with firearm weapon described as a 30-bore pistol---Presence of the accused at the crime scene at the time of occurrence was not disputed---Strained relationship of accused with his in-laws was not disputed, who were living in the neighbourhood---Both the deceased were also living in the proximity of the house of the accused---Indeed, the accused and his in-laws were fighting in the street and the loud voices had led the complainant and both the deceased to come to the crime scene---Evidence brought on record established beyond doubt that the accused was in a rage and was not allowing anyone to rescue the injured who were lying on the ground---Deceased were helping the injured to be put in the vehicle so that they could be rushed for medical treatment---Such fact had provoked the accused to attack both the deceased---Accused first attempted to shoot them with a fire arm weapon and when that misfired, he took the hatchet from his father and caused severe injuries to both the deceased---Ocular evidence was unimpeachable, credible and trustworthy, which was corroborated by medical evidence and other testimonies and evidence brought on record by the prosecution---Admittedly, at the time of commission of the offence, the accused was not of tender age and was more than 50 years and there was nothing on record to indicate that he suffered from any mental disability---Evidence brought on record unambiguously indicated that the accused had acted with full responsibility and without caring for the consequences by brutally attacking two innocent neighbours who were trying to help the injured---Prosecution, through unimpeachable, credible and trustworthy evidence, had established that the accused had taken the lives of two innocent persons in broad day light and that too in the sight of several other inhabitants of the locality---Appeal was dismissed accordingly.

Muhammad Rafique and other v. The State and others 2010 SCMR 385; Riaz Ahmed v. The State 2010 SCMR 846; Ahmed v. The State 2015 SCMR 993; Naveed alias Needu and others v. The State 2014 SCMR 1464; Muhammad Mumtaz and another v. The State and another 2012 SCMR 267; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Ikram and another v. The State 2011 SCMR 1133; Abld Hussain v. The State PLD 1994 SC 641; Vali Muhammad v. Bajoo and others 1978 SCMR 257; Muhammad Ilyas and others v. The State 2011 SCMR 460; Mazhar Abbas alia Baddi v. The State 2017 SCMR 1884; Ijaz Ahmad v. The State 2017 SCMR 1941; Ali Bux and others v. The State 2018 SCMR 354; Aslam Pervaiz and another v. The State and others 1989 SCMR 389; Haq Nawaz v. The State 2018 SCMR 21; Asad Mahmood v. Akhlaq Ahmed and another 2010 SCMR 868; Mehmood Rashid and others v. The State 2003 SCMR 581 and Ahmed Nawaz v. The State 2009 SCMR 399 ref.

(b) Administration of justice---

----No court of law could decide a question of law on the basis of fact which itself was not proved or established in terms of the legal requirements.

(c) Criminal trial---

----Sentence, reduction in---Mitigating circumstances---Grounds for reduction in sentence could not be pressed into service on the basis of something which had not been proved.

Malaik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17 rel.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-i-amd, attempt to commit qatl-i-amd, causing mutalahimah--- Sentence, reduction in---Influence of elders--- Mitigating circumstance--- Accused of mature age and understanding for that reason could not be regarded to have acted on instigation because the principle of influence of elders was confined only to offenders of impressionable ages and that too living under influence of elders.

Mansha v. The State 1986 SCMR 543; Sher Hassan v. The State PLD 1959 SC 480; Muhammad Ilyas v. Muhammad Sufian and another PLD 2001 SC 465 rel.

Raja Ghaneem Aabir Khan for Appellant.

Jan Mohammad for Respondents.

Awais Haidher Malik, State Counsel.

2019 P Cr. L J 1464

[Islamabad]

Before Mohsin Akhtar Kayani, J

KABIR KHAN---Appellant

Versus

The STATE---Respondent

Jail Appeal No. 28 of 2018, decided on 8th April, 2019.

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

----Ss. 302, 308, 338-C(a), (c) & 34---Qatl-i-amd not liable to qisas, isqat-i-janin, common intention---Appreciation of evidence---Motive not proved---Motive of the occurrence was that the in-laws of deceased were not giving her jewellary and were quarrelling with her---Prosecution had failed to prove the motive as alleged in the complaint through any independent means---Even the complainant had not stated with regard to the said motive in his examination-in-chief, therefore, the motive of case was shrouded in mystery and was not proved.

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

----Ss. 302, 308, 338-C(a), (c) & 34---Qatl-i-amd not liable to qisas, isqat-i-janin, common intention---Appreciation of evidence---Motive, proof of---Prosecution was not under obligation to establish motive in every murder case, but if motive was alleged then it was the duty of prosecution to prove the same---Failure to prove the alleged motive would damage prosecution's case.

Noor Muhammad v. The State 2010 SCMR 97; Abdul Ghaffar alias Kaka v. The State 2018 PCr.LJ Note 15; Rani Bibi v. The State 2018 PCr.LJ 310; Nawab v. The State 2002 PCr.LJ 915 and Muhammad Aslam v. The State 2015 YLR 582 rel.

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

----Ss. 302, 308, 338-C(a), (c) & 34---Qatl-i-amd not liable to qisas, isqat-i-janin, common intention---Appreciation of evidence---Delay in sending the weapon of offence and crime empties to laboratory---Effect---In the present case, weapon of offence i.e. .30 bore pistol, allegedly recovered was sent to Forensic Science Laboratory with unexplained delay of 40 days and two fire-arm empties allegedly recovered were sent to Forensic Science Laboratory with unexplained delay of 28 days---Even otherwise, if the fire-arm empties were kept in Police Station till recovery of weapon of offence without any plausible explanation, the entire recovery became doubtful---Effect of delay in sending weapon of offence and fire-arm empties would nullify the effect of such recoveries.

Jahangir v. Nazar Farid 2002 SCMR 986 and Naseer-ud-Din v. The State 2001 PCr.LJ 540 rel.

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

----Ss. 302, 308, 338-C(a), (c) & 34---Qatl-i-amd not liable to qisas, isqat-i-janin, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Despite the report of Forensic Science Laboratory that empties matched with the alleged weapon of offence i.e. .30 bore pistol, the same was inconsequential as the witness of recovery/Investigating Officer had acknowledged that the pistol was recovered at the identification of accused from the bushes---Other witness of recovery had conceded that the place of recovery of pistol was an open area and said pistol was not available in the court---Recovery witness had confirmed that the pistol was lying nakedly in the bushes and the said place was accessible to every one---Recovery memo of pistol was silent qua the sealed inscription of "LA"---Recovery of .30 bore pistol was worthless, in circumstances, and the same could not be relied upon for the purpose of conviction in a capital charge, in circumstances.

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

----Ss. 302, 308, 338-C(a), (c) & 34---Qatl-i-amd not liable to qisas, isqat-i-janin, common intention---Appreciation of evidence---Benefit of doubt--- Prosecution case was that accused in connivance with co-accused persons committed murder of daughter of complainant with .30 bore pistol for the reason that her in-laws were not giving her jewellary and had been quarrelling with her---Delay of 24 hours in lodging the FIR had not been explained---Recovery of two firearm empties had not been referred in the inquest report---Case had been registered after due deliberation, especially when complainant, father of deceased, came from his hometown to place of occurrence on police information and submitted his application for registration of case---Prosecution had heavily relied upon the testimonies of two witnesses, who were just informers and had seen the dead body of deceased---Said witnesses had claimed that father of the accused had told them that his son/accused had gone to murder his wife/deceased---Such statement was to be called a hearsay statement and could not be relied upon for the purpose of conviction---Circumstances established that accused had been convicted without appreciating the evidence in its true perspective, rather the prosecution case was packed with various discrepancies and irregularities, which created doubt to be extended in favour of accused as a matter of right---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Abdul Rehman v. 2nd Additional Sessions Judge, Badin 2014 YLR 2628 and Rifat Hussain v. The State 2011 YLR 921 rel.

(f) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance was enough to create reasonable doubt and if a doubt emerged on record, its benefit had to be extended to accused person as a matter of right.

Muhammad Ilyas v. The State 1997 SCMR 25; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Irshad v. The State 1999 SCMR 1030; Wajahat Ahmed v. The State 2016 SCMR 2073; Aqeel alias Mundri v. The State 2017 YLR 375 and Abdul Jabbar v. The State 2019 SCMR 129 rel.

Ms. Qurat-ul-Ain Ayesha for Appellant (at State expense).

Zulfiqar Ali Safdar for the Complainant.

Fareed Hussain Kaif, State counsel.

2019 P Cr. L J 1497

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

SHEHZAD AHMED---Appellant

Versus

ZAFAR alias ZAFRI and 4 others---Respondents

Criminal Appeal No. 88 of 2011, decided on 1st July, 2019.

(a) Criminal trial---

----Witness---Single witness---Conviction---Principle---Conviction can be handed down on basis of deposition of a solitary witness---Quality and not quantity of evidence is required to be considered by Trial Court.

Riaz Hussain v. The State 2001 SCMR 177 rel.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom--- Appreciation of evidence--- Solitary statement of abductee---Corroboration---Seven accused persons were sent up to face trial for kidnapping for ransom---Trial Court convicted and sentenced three accused persons to death while the rest were acquitted of charge---Validity---Confidence inspiring deposition of abductee stood corroborated by other reliable evidence to extent of guilt of convicted accused persons---No reason was available to disbelieve consistent and confidence inspiring, trustworthy deposition of abductee to extent of convicted accused persons---Testimony of abductee to the extent of acquitted accused persons, however could not be disbelieved, for prosecution could not bring sufficient evidence on record for corroboration---High Court declined to interfere in conviction and sentence passed by Trial Court under S. 365-A, Cr.P.C.---Conviction and sentence under S. 7 of Anti-Terrorism Act, 1997 was set aside as prosecution could not establish all the ingredients required to prove the commission of offence---Appeals were dismissed accordingly.

Riaz Hussain v. The State 2001 SCMR 177; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; The State v. Nazir Ahmed and others 1999 SCMR 610; Shahbaz Khan alias Tippu and others v. Special Judge Anti-Terrorism Court No. 3, Lahore and others PLD 2016 SC 1; Malik Muhammad Mumtaz Qadri v. The State and others PLD 2016 SC 17; Khuda-e-Noor v. The State PLD 2016 SC 195; Kashif Ali v. The Judge, Anti-Terrorism, Court No. II, Lahore and others PLD 2016 SC 951 and Waris Ali and 5 others v. The State 2017 SCMR 1572 ref.

Raja Ghaneem Aabir Khan, Qausain Faisal Mufti and Raja Bilal Asif for Appellant.

Rao Abdul Raheem for the Complainant.

Malik Awais Haider, State counsel.

2019 P Cr. L J 1600

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

The STATE---Appellant

Versus

MUHAMMAD SIDDIQUE and another---Respondents

Capital Sentence Reference No. 2-T of 2011, decided on 12th June, 2019.

Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd---Act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon---Proof---Testimony of witnesses---Inconsistency---Forensic evidence, falsification of---Eleven accused were arrested on charges of murder and indiscriminate aerial firing but Trial Court only sentenced one accused to death while other absconded---Depositions showed no mention of sealed parcel relating to recovery of .30 bore pistol from house of accused and led by him for recovery---No explanation was on record as to when such parcel was handed over to the relevant official of police station for safe custody and then delivered to the Laboratory; it was also not known as to which parcel with .30 bore pistol was handed over to police official who appeared as prosecution witness for delivery at the Laboratory---Medical evidence also did not support ocular account---Deposition of prosecution witnesses were not relied upon as same did not inspire confidence--- Prosecution failed to bring on record unimpeachable evidence to establish guilt of accused persons---Investigation was not conducted honestly, fairly and in professional manner and prosecution during trial failed in its duty to bring on record consistent, trustworthy and unimpeachable evidence---Witnesses (police officials) appeared to have prima facie deposed falsely despite one of their colleagues having lost his life while in uniform and performing his duties---Police officials who were present on occasion appeared to have shown cowardice---Investigating officer turned a blind eye to acts of persons who were named in FIR and who were alleged to have resorted to and had instigated rioting and unlawful assembly by persons who were armed with deadly weapons---Obstruction caused to public servants in discharge of their functions was also ignored---High Court acquitted accused persons and set aside conviction and sentence passed by Trial Court---Appeal was allowed accordingly.

Zafar v. The State and others 2018 SCMR 326; Kamal Din alias Kamala v. The State 2018 SCMR 577; Muhammad Mansha v. The State 2018 SCMR 772; Umer Khursheed and another v. Syed Tufail Ahmed and others 2018 SCMR 1051; Karamat Hussain v. The State 2018 YLR 685; Shahbaz Khan alias Tippu v. Special Judge Anti-Terrorism Court No.3, Lahore PLD 2016 SC 1; Malik Muhammad Mumtaz Qadri v. State PLD 2016 SC 17; Khuda-e-Noor v. State PLD 2016 SC 195 and Kashif Ali v. The Judge, Anti-Terrorism, Court No. II, Lahore PLD 2016 SC 951 ref.

Syed Javed Akbar Shah for Appellant.

Malik Awais Haider, State counsel, Arshad Ali, Inspector and Muhammad Manzoor, S.I., Police Station Golra Sharif, District Islamabad for the State.

2019 P Cr. L J 1677

[Islamabad]

Before Aamir Farooq and Mohsin Akhtar Kayani, JJ

TAHA RAZA and another---Petitioners

Versus

The STATE and others---Respondents

W.Ps. No. 1545 and 1546 of 2019, decided on 19th June, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 9(b)---Prevention of Corruption Act (II of 1947), S. 5(2)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Penal Code (XLV of 1860), Ss. 419, 420, 468 & 471---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Money laundering---Fake accounts---Prima facie case---Petitioners were Bank officials and were arrested by National Accountability Bureau and investigated for money laundering and layering of illegal funds through a front company causing loss of Rs. 4.5 billion to national exchequer---Validity---Prima facie, petitioners were well-connected with scam of fake Bank account of front company---Account was opened and verified upon insistence and instructions of petitioners and such account was used for purpose of layering of amount of Rs.4.5 billion---Offence with which petitioners were charged fell within prohibitory clause of S. 497(2), Cr.P.C.---Petitioners having been charged with offence of corruption and corrupt practices as well as offence of money laundering, High Court declined to grant bail to petitioners as Interim challan had been submitted in court and no ground for further inquiry existed---Petition was dismissed, in circumstances.

Imran Mohsin v. The State 2016 SCMR 1965; Sohrab Khan Marri Khuda Bakhsh v. The State 2017 SCMR 669; Rai Muhammad Khan v. NAB through Chairman and others 2017 SCMR 1152; Chairman NAB v. Mian Muhammad Nawaz Sharif and 2 others PLD 2019 SC 445 and Tallat Ishaq v. NAB through Chairman and others PLD 2019 SC 112 ref.

Syed Hamid Ali Shah and Syed Ishfaq Hussain Naqvi for Petitioners.

2019 P Cr. L J 1764

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD SHAFAQAT---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 180 of 2016, decided on 15th April, 2019.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Retracted confession---Interested witnesses, testimony of---Three persons were arrested and faced trial for committing qatl-i-amd---Entire evidence was silent regarding connection of accused with crime except that he was present at place of occurrence and he was nominated by brother of deceased who was complainant---Complainant failed to place on record any evidence to connect accused with commission of offence---Case was based on circumstantial evidence and prosecution failed to prove same through cogent evidence and also failed to establish chain of evidence in any manner--- Trial Court acquitted co-accused on same set of evidence which approach should have also been adopted to the extent of accused being an alleged co-accused--- Alleged confession was not corroborated through independent evidence of reliable nature, therefore, same could not be used for purpose of conviction on capital charge---Prosecution had failed to link accused with murder of deceased which resulted into benefit of doubt in favour of accused---High Court set aside conviction and sentence awarded by Trial Court and acquitted accused of charge as if slightest doubt emerged on record, benefit of same was extended to accused---Appeal was allowed in circumstances.

Ulfat Husain v. The State 2018 SCMR 313; Tariq v. The State 2017 SCMR 1672; Muhammad Afzal v. The State 2017 SCMR 1645; Muhammad Ali v. The State 2015 SCMR 137; Intekhab Ahmad Abbasi and others v. The State and others 2018 SCMR 495; Hashim Qasim and others v. The State 2017 SCMR 986; Muhammad Ismail v. The State 2017 SCMR 713; Muhammad Ismail v. The State 2017 SCMR 898; Abdul Nabi v. The State 2017 SCMR 335; Muhammad Ashraf v. The State 2016 SCMR 1617 and Dadullah and others v. The State 2015 SCMR 856 ref.

(b) Criminal trial---

----Witness---Interested witness, testimony of---Principle---Interested and closely related witnesses cannot be called as independent witnesses and their statements cannot be relied upon unless their evidence is corroborated through an independent source.

Muhammad Asif v. The State 2017 SCMR 486 rel.

Mir Muhammad Ghufran Khurshid Imtiazi for Appellant.

Ms. Saima Naqvi, State Counsel for Respondent No.1.

Rana Kashif Saleem Arfa and Mumtaz Khan, Joint Estate Officer for Respondent No.2.

2019 P Cr. L J 17

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

MEER NAWAZ and another---Appellants

versus

The STATE---Respondent

Criminal Jail Appeal No. S-37 of 2013, decided on 20th February, 2018.

(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 armed with T.T. pistols along with co-accused made firing at the aunt of complainant, which hit at her head and right arm---Injured was shifted to hospital, where she expired due to injuries---Motive of the incident was that the accused, who was son of the deceased lady from her previous husband, was annoyed due to her divorce from his father and remarrying the uncle of complainant---Ocular account of the incident was furnished by two witnesses including complainant---Record showed that accused persons were nominated in the promptly lodged FIR and they were well identified by complainant and other eye-witness---Complainant and eyewitness were consistent on the vital point of their depositions---Presence of eye-witnesses was properly explained and reasoned out by the complainant---Complainant party, just after the incident, firstly had taken the deceased lady in injured condition to the hospital and subsequently, complainant approached the police station for lodging of FIR---Testimonies of said witnesses revealed that both the accused came to the place of incident and actively participated in the incident by firing upon the deceased lady---Eye-witnesses in their testimonies described that the fire shots of both the accused were received by the deceased on her body---Complainant described that the deceased received a fire shot on her forehead while the other fire shot was received by her on her right arm---Both the injuries were attributed to the accused and co-accused respectively---Lady Medical Officer, who conducted autopsy of deceased had stated that the deceased received several injuries including fire arm injuries on her forehead as well as right arm---Said situation had suggested that there were no major contradictions in the ocular and medical evidence---Defence had pointed out that accused had been acquitted by the Judicial Magistrate in the other cases registered against them under the Arms Ordinance---Recovery of crime weapon was declared doubtful, therefore, the conviction and sentence in the present matter would be contrary to justice---Validity---Criminal cases had their own footing and failure of one criminal case would have no effect on the other criminal case---Every case had to be looked into on the basis of evidence recorded in the case irrespective of any other matter including the result of a another case---Complainant and eyewitness remained firm on the vital point of their testimony during cross-examination conducted at length---Circumstances established that prosecution had proved the case through ocular account as well as considerable corroborative evidence in the shape of recovery of crime weapons, medical evidence and positive Ballistic Expert Report---Appeal was dismissed in circumstances.

The State v. Khan Muhammad alias Khanan 2005 PCr.LJ 811 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about one hour in lodging of FIR---Effect---Incident had taken place at 12.30 hours while FIR was lodged at 13.30 hours---Factum of case narrated in FIR was very much natural and without any addition and exaggeration, as it was reported within an hour of the incident---Question of consultation and fabrication would not arise in such a short time.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that both the accused were arrested within few hours after the incident and crime weapons were recovered from their possession, which were sent to Ballistic Expert along with empties recovered from the place of incident---Forensic report showed that the crime empties were fired from the weapons recovered from the accused---Recovery of weapon from accused could be relied upon, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, proof of---Motive of the case was described as the second marriage of deceased lady (mother of accused) with the uncle of the complainant---Prosecution case was that the deceased lady after getting her earlier marriage dissolved, contracted second marriage with the uncle of the complainant on her own free will and consent---Co-accused was the son of the deceased from her previous husband and he was annoyed with the deceased on account of said second marriage---Motive was very much agitated by the complainant in the promptly lodged FIR and he had described the same during his testimony---Complainant had reasoned out the absence of the husband of the deceased by describing that at the time of incident, he was out of town---Motive had been proved by the prosecution in circumstances.

Ghulam Ali Rind for Appellants.

Ms. Rubina Dhamrah, ADPP for the State.

2019 P Cr. L J 55

[Sindh]

Before Omar Sial, J

ISHAQ ALI and another---Applicants

versus

The STATE---Respondent

Criminal Bail Application No. 1631 of 2016, decided on 31st March, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 395 & 337-A(i)---Dacoity, hurt---Pre-arrest bail, confirmation of---Complainant alleged that accused persons committed dacoity in his house on 26-02-2016 and on 11-03-2016 they hit complainant on the head with some solid object---Counter FIRs were also registered against complainant---Long standing enmity prevailed between the parties and false involvement of accused could not be ruled out---Delay in lodging the FIR remained unexplained---Accused was not named as one of the persons who committed dacoity---Complainant did not even know as to with what weapon he was hit on the head by accused---Offence under S. 337-A(i), P.P.C. carried a punishment of two years and was a bailable offence---Only co-accused was named as one of the persons who came to the house of complainant and committed dacoity---Vague details were given in the FIR with regard to stolen property---No recovery had been effected to date---Veracity of prosecution case could only be determined after recording of evidence---Interim pre-arrest bail granted earlier was confirmed accordingly.

Umar Farooq Khan for Applicants.

Muhammad Iqbal Awan, APG for the State.

2019 P Cr. L J 95

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

MURAD ALI BANGALANI and 5 others---Applicants

versus

The STATE---Respondent

Criminal Revision Application No. D-06 of 2017, decided on 9th May, 2017.

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

----Ss. 6(1)(b)(c), (2)(n)(m) & 23---Criminal Procedure Code (V of 1898), S. 439---"Terrorism"---Application for transfer of case from Anti-Terrorism Court to Court of ordinary jurisdiction---Secluded area of offence---Accused were aggrieved of order passed by Anti-Terrorism Court, declining to transfer the case to court of ordinary jurisdiction---Validity---No evidence was available to suggest that action was taken by accused with any design, intention and mens rea of causing "terrorism"---Area of incident was a secluded area and it did not have impact of causing intimidation, awe, fear and insecurity in public or society---No members of public were around to witness or even hear the action---When police officials were confined in a room and were made to be photographed in the company of ladies, such incident also took place in closed room---Actions against police were though of very serious nature and were to be discouraged and dealt with iron hand as in effect such were the attacks on society as a whole, yet such attacks could only be dealt with under the relevant and applicable law---Actions allegedly taken by accused against police did not fall within the ambit of Anti-Terrorism Act, 1997---Material/evidence did not meet the requirements of S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997---High Court set aside the order passed by Anti-Terrorism Court and the trial was transferred to criminal court of competent jurisdiction---Revision was allowed in circumstances.

Younas v. The State 2014 PCr.LJ 1062; Liaquat Ali and 2 others v. Special Judge, Anti-Terrorism Court No.1, Gujranwala and 3 others 2007 YLR 1222; Gul Muhammad and another v. The State 2013 PCr.LJ 52; Jahangir Akhtar Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89 and Ghulam Sarwar v. The State 2013 YLR 1135 ref.

Muhammad Hashim Leghari for Applicants.

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

2019 P Cr. L J 126

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

SIKANDER ALI BROHI and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION MADEJI

and others---Respondents

Constitutional Petition No. S-1227 of 2016, decided on 23rd May, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 87 & 88---Constitution of Pakistan, Art. 199---Constitutional petition---Abscondance of accused---Petitioner sought direction to police officials for arrest of nominated accused persons who were declared absconders---Validity---Action against any accused could not be taken unless a proper proclamation under S. 87, Cr.P.C. was issued against him---Whenever absconding accused appeared before Trial Court and had offered some explanation and gave assurance to face trial, Trial Court was not to be languid in restoring his financial resources especially his salary and Bank accounts---Every possible effort was to be made by Trial Court as well as by police to procure appearance of an absconding accused before Trial Court---Anxiety of petitioner was that accused persons nominated in his FIR were at large and neither they were arrested by police nor did they surrender themselves before Trial Court---Police was trying diligently for arrest of accused nominated in FIR lodged by petitioner---High Court directed Station House Officer concerned to pace up his efforts while Trial Court was required to do needful in such respect---Constitutional petition was disposed of accordingly.

Riaz Hussain Khoso for Petitioners.

Abid Hussain Qadri, State counsel along with PSI Shabbir Ahmed for DIGP Larkana.

2019 P Cr. L J 157

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

BABU LAL---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. 49 of 2017, decided on 9th May, 2018.

Penal Code (XLV of 1860)---

----Ss. 420 & 406---Cheating and dishonestly inducing delivery of property, criminal breach of trust---Appreciation of evidence---Complainant got booked a flat and paid sale consideration in instalments to the Builder/accused---Builder failed to hand over possession of flat on completion to the complainant---Builder, after registration of FIR against him by the complainant, obtained interim pre-arrest bail and entered into agreement whereby he agreed to compensate the complainant by providing another flat in the project---Trial Court, in view of said agreement, confirmed the pre-arrest bail of accused/Builder---Builder having not fulfilled the terms and conditions of the agreement, order of pre-arrest bail in favour of the Builder was recalled and he was ordered to be arrested and was awarded conviction by the Trial Court under S.420, P.P.C.---Validity---Witnesses examined by the prosecution were cross-examined by defence counsel and testimony of said witnesses could not be shattered---State of mind of accused/Builder was to be ascertained from his conduct and the surrounding circumstances---Builder had retracted from his agreement for two times and by cheating and fraud he received entire amount of the property in question but failed to deliver its possession to the complainant---Provisions of S. 420, P.P.C., were attracted in circumstances---Two courts below while deciding the matter had committed no misreading, non-reading of evidence and justifiably exercised jurisdiction vested in them---Revision was liable to be dismissed along with listed application.

1969 SCMR 564 ref.

Mohammad Yousuf Sheikh for Applicant along with Applicant in person.

Attorney/Father of the Complainant.

Muhammad Iqbal Awan, Additional P.-G. Sindh for the State.

2019 P Cr. L J 201

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Irshad Ali Shah, JJ

MAJID alias DODO and 3 others---Applicants

Versus

The STATE and another---Respondents

Criminal Misc. Application No. 1048 of 2017, decided on 10th May, 2018.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash or negligent act to endanger human life, rioting, unlawful assembly, terrorism---Transfer of case to court of ordinary jurisdiction---Act of terrorism, motive and manner---Effect--- Jurisdiction of Anti-Terrorism Court--- Scope--- First Information Report was registered against applicants, and other accused, who were allegedly running gambling and narcotic dens in their neighbourhood which was objected by complainant party---Accused in order to maintain their supremacy in the neighbourhood, formed unlawful assembly and committed murder of one of the members of complainant party by causing him fire shots and butt blows---Applicants/accused contended that both parties being neighbors had dispute between them, provisions of Anti-Terrorism Act, 1997 were not applicable---Complainant contended that applicants, along with others, had committed an act of terrorism by creating insecurity amongst the people of neighbourhood by committing murder of the deceased in a brutal manner---In determining the applicability of S. 6 of the Anti-Terrorism Act, 1997, the claimed motive was not of much importance but it would be the design(manner) which the culprit chose to achieve the object---If an offence was designed in such a manner that ultimate effect thereof would result in striking general public or those intending to do a lawful act which the targeted person or persons did, then such offence would fall within the mischief of S. 6(2) of Anti-Terrorism, 1997---Occurrence, in the present case, was not an act of sudden reaction but a premeditated and preplanned act on the part of applicants and others---Manner in which the applicants and others had acted prima facie was not to settle some personal score but seemed to leave a message to people of neighbourhood, thereby conveying them lethal consequences in objecting their wrongful and unlawful act---Such object, prima facie appeared from date, time and place the applicants and others had chosen for committing the offence, which obviously created a sense of insecurity amongst the people of neighborhood or society---Act on the part of applicants and others fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997---Judge Anti-Terrorism Court was right to dismiss application of the applicants under S. 23 of Anti-Terrorism Act, 1997 for transfer of their case from his Court to court of ordinary jurisdiction for the trial---Criminal miscellaneous application was dismissed accordingly.

Kashif Ali v. The Judge, Anti-Terrorism Court No. 11 Lahore and others PLD 2016 SC 951 ref.

Province of Punjab v. Muhammad Muqeem and others PLD 2018 SC 178; Waris Ali and others v. The State 2017 SCMR 1572; Fazal Dad v. Colonel (Retd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Bashir Ahmed v. Muhammad Siddiq and others PLD 2008 SC 11; Umar Farooq and others v. Judge Anti-Terrorism Court Mirpur Khas and others 2014 PCr.LJ 1052 and Hazoor Bux and another v. The State and another PLD 2012 Sindh 469 distinguished.

Amanullah Malik for Applicants.

Muhammad Farooq Jatoi and Abdul Hafeez Mirani for Complainant/Respondents.

Sardar Ali Shah Rizvi, DPG.

2019 P Cr. L J 238

[Sindh (Larkana Bench)]

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

BILAWAL---Appellant

Versus

The STATE---Respondent

Jail Appeal No. D-02 of 2018, decided on 17th April, 2018.

(a) Criminal trial---

----Abscondence--- Scope--- Abscondence could at the most be a suspicious circumstance against the accused and nothing more.

Rahimullah Jan v. Kashif and others PLD 2008 SC 298 rel.

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

----Ss. 365-A, 337-H(2), 148 & 149---Anti Terrorism Act (XXVII of 1997), Ss. 7 & 21-L---Kidnapping or abduction for extorting property, act so rash or negligent to endanger human life or the personal safety of others, rioting armed with deadly weapon, unlawful assembly, act of terrorism, absconsion---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and co-accused persons had made aerial firing upon the complainant party and abducted the nephew of complainant for ransom---Police after completion of investigation submitted challan under S. 512, Cr.P.C. against all the accused persons before the Trial Court showing them as absconders---One of the co-accused, later, joined the trial after seeking pre-arrest bail---Charge was framed against the co-accused and absconders, wherein the co-accused pleaded not guilty and claimed to be tried---Trial Court acquitted the co-accused and absconders including accused from the charges by extending them benefit of doubt, but convicted and sentenced the accused in absentia under S. 21-L of the Anti-Terrorism Act, 1997---Record showed that none of the accused including present accused was implicated by the complainant as well as abductee hence, it was case of no evidence---Non-bailable warrants issued against the present accused had showed his address at city 'L', where millions of people resided---Report submitted by the process servers revealed residence of accused at colony 'B'---When address of the accused was not mentioned in non-bailable warrants, who informed the process server that the present accused resided in colony 'B' was not understandable---Circumstances suggested that just the formalities were completed by the Trial Court and no proof was produced by the prosecution to believe that the warrants were served upon the accused who wilfully remained absconder---Co-accused with almost similar role had already been acquitted by the Court, therefore the present accused was entitled for the same relief---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Haji Muhammad v. The State PLD 2003 SC 262 rel.

Naveed Ali Khokhar for Appellant.

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

2019 P Cr. L J 262

[Sindh]

Before Nazar Akbar, J

INDEPENDENT MEDIA CORPORATION (PVT.) LIMITED through Duly Authorized Attorney---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman---Respondent

Miscellaneous Appeal No. 30 of 2013, decided on 24th May, 2018.

Pakistan Electronic Media Regulatory Authority Ordinance (II of 2002)---

----S. 29(6)---Anti-Terrorism Act (XXVII of 1997), S. 11W---Printing, publishing, or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any banned organization or an organization placed under observation or anyone concerned in terrorism---Show-cause notice---Show-cause notice was issued to a Media Corporation by the Pakistan Electronic Media Regulatory Authority (PEMRA), for airing message of leader of a banned organization in which he had declared that democracy was kufr---Show-cause notice, had categorically stated that all the News and Satellite TV channels including the appellant were directed not to air the statement of any of the banned organizations---Appellant filed reply to the show-cause notice and tried to justify airing of such statement of the leader of banned organization on various grounds---Pakistan Electronic Media Regulatory Authority (PEMRA), in its meeting, examined reply of show-cause notice from the appellant and after detailed deliberations it was unanimously decided that appellant had committed wilful violation of various provisions of the Ordinance, and S. 11W of the Anti-Terrorism Act, 1997, and imposed fine---Validity---Reply to the show-cause notice showed that appellant aired the message of the leader of banned organization on the ground that the militant/anti state organizations had threatened the journalists, reporters and anchorpersons for giving them proper coverage and to broadcast/air/publish their statements on the national media---Apparently, reply to show-cause notice was the only compelling reason for airing the interview of leader of banned organisation---Appellant, in circumstances, seemed to have obliged the banned organization to avoid the threat and if that was the case, the appellant had no moral justification to continue in the noble business of journalism both in print and electronic media---Alleged act of the appellant was not short of aiding and abetting of the terrorists and failure to legally justify, it would attract the provisions of S. 11W of the Anti-Terrorism Act, 1997---Appeal was dismissed, in circumstances.

Saim Hashimi for Appellant.

Kashif Hanif for Respondent.

2019 P Cr. L J 281

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MEHRAN HUSSAIN---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, HYDERABAD and 5 others---Respondents

Constitutional Petition No. D-2063 of 2016, decided on 9th August, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Application to Justice of Peace for providing legal protection to the petitioner and his family from the hands of respondents---Dismissal of such application with direction to the applicant to file private complaint---Powers and duties of Justice of Peace/Judicial or quasi judicial officers---Scope---Validity---Record transpired that Ex-officio Justice of Peace had passed the dismissal order without hearing the petitioner, examining the contents of application and verifying whether thing, presented before it, was in fact related to what it was claiming to or otherwise---High Court observed that such conduct could neither be approved nor was expected from a Judicial Officer whose every order otherwise addressed either to a right or an obligation---Before speaking about application of judicial mind the presence of mind, at least, must appear from every single order whether it be a judicial or quasi-judicial---Every order must be an out-come of deliberation and application of mind judiciously---Direction for lodgment of FIR might be a discretion but when someone came with a complaint of insecurity and requested for instruction to police to provide protection, same should not be declined that it always be hammered thereby instructing to police to provide protection which otherwise was undeniable duty and obligation of the police---Negligence/failure on part of the police authority, if resulting into a complaint of insecurity, must be entertained by Ex-officio Justice of Peace within the meaning of S. 22-A(6)(iii)---Petition was allowed, in circumstances, by setting aside the impugned order and the police authority was directed to provide necessary protection and to initiate necessary action as per law.

Sardar Iqbal Panhwar for Petitioner.

Allah Bachayo Soomro, Additional A.-G. for Respondents.

2019 P Cr. L J 305

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

NAEEM alias GUNDA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-125 of 2016, decided on 23rd April, 2018.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Complainant and other eye-witness, who were real brothers of the deceased, admitted that accused was neither available at the place of incident nor they saw him armed with rifle, firing at their brother/deceased---Said witnesses were declared hostile and were cross-examined; but prosecution could not extract anything from their mouth to connect accused with the commission of offence---Incident had taken place during broad hours of the day in presence of inmate/wife at the house of the deceased, but neither any of the inmate/wife of the deceased was enquired about the incident during course of investigation nor they were produced before the Trial Court for recording their statements to corroborate the prosecution story---Contradictory statements of the eye-witnesses coupled with material improbabilities had impaired the transparency of their ocular testimony which itself was sufficient to demolish the whole case of prosecution---Mashir in the case, who produced mashirnama of place of incident and recovery of empties, admitted that the cartridges were not sealed at the spot---When the entire recovery had been refuted by the mashir, even if effected in his presence; would carry no weight---Forensic Science Laboratory's report produced by State Counsel by way of statement was also of no consequence---Said piece of evidence, would not strengthen the prosecution case, which rendered it highly doubtful---Prosecution had failed to prove its case against accused beyond reasonable doubt---Trial Court had not evaluated the evidence in its true perspective and reached to an erroneous conclusion by holding accused guilty of the offence---Conviction and sentence awarded to accused were set aside and he was acquitted of the charge by extending him benefit of doubt.

(b) Criminal trial---

----Direct evidence---Scope---Direct evidence, was always material to decide a fact---Failure of direct evidence, was sufficient to hold a criminal charge as not proved, but where the direct evidence would remain in the field with test of its being natural and confidence inspiring, then requirement of independent corroboration, was only a rule of abundant caution and not a mandatory rule to be applied invariably in each case.

(c) Criminal trial---

----Witness---Disbelieving of---For disbelieving a witness, it was not necessary that there should be numerous infirmities; if there was one which would impeach the credibility of the witness, that would make the entire statement doubtful.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence---Scope---Medical evidence at the most was supporting piece of evidence and relevant only if primary evidence i.e. ocular account inspired confidence---Medical evidence, simply would disclose the nature of injuries, kind of weapon and duration of time as well as cause of death, but it could not signify the author of injuries.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(e) Criminal trial---

----Benefit of doubt---If a single circumstance would create reasonable doubt in the prudent mind, then its benefit had to be given to accused, not as a matter of grace or concession, but as the matter of right.

Muhammad Masha v. The State 2018 SCMR 772 rel.

Athar Abas Solangi for Appellant.

Sharafuddin Kanhar, Additional Prosecutor General for the State.

2019 P Cr. L J 348

[Sindh]

Before Ms. Kausar Sultana Hussain, J

MUHAMMAD KHALID and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision Application No. 147 of 2016, decided on 9th August, 2018.

Agricultural Pesticides Ordinance (II of 1971)---

----S. 21---Sale of sub-standard pesticides---Appreciation of evidence---Trial Court convicted the petitioners for sale of sub-standard pesticides and Appellate Court upheld the conviction---Plea of petitioners, inter alia, was that Trial Court erred in placing burden of proof upon them to prove their innocence though the onus of proof rested on the prosecution---Validity---Nothing on record revealed that the pesticide available at the shop was counterfeit or spurious neither was it alleged that seal of pesticides was tampered or broken---Petitioner, pesticide dealer, was a bona fide purchaser of alleged sub-standard pesticide from a company; his role was limited to buying and subsequent selling of products; he, in no sense, was required to get the products analyzed from laboratory---Petitioner, Area Manager of company, logically was a paid employee of the company; he was not required to assure or examine the quality of the product of the company; his function was to manage the operations of the product of the company in the area of his jurisdiction---Petitioner, Marketing Manager of company, was made accused when Trial Court indicted the company as accused---Petitioner was nominated by the board members to appear and face the case of prosecution on behalf of the company, he being an employee of the Company entrusted with duties of marketing, culpability of alleged offence lay on the Company as a legal person---Petitioner had no role for knowingly selling or intentionally allowing sale of sub-standard pesticides---Actus reus could not be attributed to the petitioner as no one could be punished for a crime he did not commit---Revision petition was allowed.

Farrukh Zia Shaikh for Appellants.

Ms. Seema Zaidi, D.P.G. along with Shankar Lal, Assistant Director Agriculture Extension Department for the State.

2019 P Cr. L J 358

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

JANGI and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department, Government of Sindh and 13 others---Respondents

Constitutional Petition No. S-536 of 2018, decided on 22nd June, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Territorial jurisdiction---Recovery of detenues---Petitioners sought recovery of their daughters from area falling in province of Sindh, from respondents, who had taken them to some place in province of Punjab---Powers conferred upon High Court to issue writ of Habeas Corpus could only be exercised within territorial jurisdiction of court and not otherwise---Detenues were alleged to be in custody in another province and High Court of Sindh had no jurisdiction to issue writ for recovery of detenues---High Court directed Senior Superintendent of Police to ensure that efforts to recover detenues in crime registered at his police station were expedited---Petition was dismissed in circumstances.

Lal Bux v. Station House Officer, Police Station 'A' Section, Sukkur PLD 2012 Sindh 288 ref.

Abdul Sattar Soomro for Petitioners.

Sardar Ali Shah Rizvi, DPG and Noor Hassan Malik, AAG for Respondents.

2019 P Cr. L J 370

[Sindh]

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

SHAHID UMAR---Petitioner

Versus

CHAIRMAN NAB and 2 others---Respondents

C.P. No. D-5369 of 2017, decided on 12th October, 2017.

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

----S. 497--- Bail--- Direction--- Non-compliance--- Effect--- Non-compliance of a direction given by High Court to a Trial Court to conclude trial within a given period of time may not on its own be a fresh ground for grant of bail.

Nisar Ahmed v. The State and others PLD 2016 SC 11 rel.

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

----S.9(a)(iv)(vi) & (b)---Criminal Procedure Code (V of 1898), S.497---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Hardship case---Delay in conclusion of trial---Principle of consistency---Applicability---Petitioner/accused facing trial under National Accountability Ordinance, 1999 had been in custody for the past 2 years and 3 months without conclusion of trial---Delay in conclusion of trial was not attributed to petitioner---Effect---No provision existed in National Accountability Ordinance, 1999 for statutory bail on account of delay which under S. 497, Cr.P.C. was a right whereas hardship cases were at discretion of court based on particular facts and circumstances of cases---Order passed by High Court had to strike a fair balance in determining factors/considerations in hardship cases in National Accountability Bureau matters whilst exercising its discretion bearing in mind that even a murder could be granted statutory bail as of right provided that requirements of S. 497, Cr.P.C. were met and he might be subject to death penalty on conviction compared to a maximum sentence of 14 years in jail in National Accountability Bureau cases whilst accepting that corruption was a serious crime and a major menace to society---Two of the other co-accused having a similar role as petitioner were granted bail on hardship grounds---High Court keeping in view rule of consistency and in exercise of discretionary powers found petitioner's case as one of hardship---Bail was allowed in circumstances.

Hamesh Khan v. NAB 2015 SCMR 1092; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Riasat Ali v. Ghulam Muhammad and the State PLD 1968 SC 353; Gul Hasan Penhyar v. The State 1997 SCMR 390; Muhammad Azim v. The State 2009 PCr.LJ 1314; Hashim v. The State 2009 YLR 1777; Shah Nawaz v. The State 2010 YLR 3182; Anwar Ali v. The State 2002 PCr.LJ 186; Muhammed Saeed Mehdi v. The State 2002 SCMR 282; Jamil A. Durrani v. State PLD 2003 Kar. 393; Aga Jahanzeb v. NAB 2005 SCMR 1666; Muhammed Nadeem Anwar v. NAB PLD 2008 SC 645; NAB v. Bakhat Zameen C.P. No. 1542 of 2016 and Syed Rashid Hussain Rizvi v. State C.P. No. D-3614 of 2016 ref.

(c) Bail---

----Heinousness of offence---Effect---Balance needs to be struck between heinousness of offence and liberty of accused who cannot be detained indefinitely.

Riasat Ali v. Ghulam Muhammed PLD 1968 SC 353 rel.

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

----Ss. 9(b) & 16(a)--- Prolonged trial--- Remedy--- If National Accountability Bureau trials are taking so long to complete due to no fault of accused it is not for accused to be made to suffer prolonged incarceration due to fault of State in any civilized society---State has to sort out shortcomings in criminal justice system so that accused is not unnecessarily made to suffer due to failure of State.

Atta Abbass Zaidi v. Chairman NAB PLD 2017 Sindh 120 rel.

Mohammad Ilyas Khan for Petitioner.

Muhammad Altaf, Special Prosecutor NAB along with I.O. for Respondents.

2019 P Cr. L J 418

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

HAKIM ALI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-103 of 2017, decided on 11th June, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 517 & 17(3)---Disposal of property regarding which offence committed---Applicant, by way of revision application had impugned order of Assistant Sessions Judge, whereby application under S. 517, Cr.P.C. for return of his gun, the subject matter of case, outcome of FIR registered under Ss. 324, 353, 427 & 34, P.P.C., was dismissed---Maintainability---Section 17(3), Cr.P.C. laid down that Assistant Sessions Judge shall be subordinate to Sessions Judge of the District within which he exercised jurisdiction---Sessions Judge from time to time could frame rules for distribution of business among the Assistant Sessions Judges---Assistant Sessions Judge had no original jurisdiction whatsoever, and his jurisdiction depended upon what the Sessions Judge devised for him---Conversely, the Sessions Judge could withdraw any case that might be pending on the file of Assistant Sessions Judge--Held, that revisional jurisdiction against the order of the Assistant Sessions Judges rested with the Sessions Judge---Revision application was dismissed for want of jurisdiction.

Abdul Rahim v. Abdul Rauf and others 1983 PCr.LJ 1390 rel.

Mazhar Ali Laghari for Applicant.

Ms. Safa Hisbani, APG for the State.

2019 P Cr. L J 429

[Sindh]

Before Muhammad Saleem Jessar, J

QADIR KHAN MANDOKHAIL---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No. 112 of 2017, decided on 8th February, 2018.

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

----Ss. 200, 202 & 203---Private complaint, dismissal of---Petitioner filed complaint under S. 200, Cr.P.C. alleging that the proposed accused/respondent was running business as partner/manager and obtained rebate of billions of rupees from Federal Board of Revenue, Customs Department and other Government departments on unregistered/local invoices and had not disclosed the assets---Allegedly, proposed accused had opened different business accounts in and out of country on the basis of fake documents and had got registered the partnership firm and also set-up a firm/business abroad---Proposed accused had concealed the fact that he was a government employee, despite he was involved in business activities and had obtained business passport without taking "No Objection Certificate" from the concerned authorities---Trial Court examined the complainant under S. 200, Cr.P.C. as well as his two witnesses under S. 202, Cr.P.C. and dismissed the complaint on the ground that complainant was not the aggrieved person to file the said complaint against the proposed accused---Validity---Informant/complainant did not require any particular relation and nexus with the crime but disclosure of commission of cognizable offences was sufficient to set the law into motion---In the present complaint, Complainant had levelled various allegations against the proposed accused however, none of the said allegations related to any alleged cognizable offence---Vague and general allegations without disclosing required ingredients of offence would not be sufficient grounds for proceedings---Record showed that various litigations were subjudice between the parties since long---Respondent in his statements, had given detail of litigations between the parties, also the applications/complaints made to different authorities---Said facts had also been admitted by the complainant---Pendency of various civil and criminal litigations between the parties, most of which had been initiated against respondent seemed to be nothing but to pressurize the respondent to bow down before the complainant and get settled the financial dispute which was admittedly subjudice between the complainant and the maternal uncle of the respondent---No specific allegation had been levelled that the respondent had committed or even attempted to commit any cognizable offence against the applicant/complainant---Possibility of victimization and harassment could not be ruled out in circumstances---Complainant was to pursue proceedings already initiated by him against the respondent instead of initiating fresh proceedings, whether civil or criminal, unless the law and circumstances so justified---Circumstances established that no justification existed to interfere with the impugned order, petition was dismissed.

1989 CLC 1805; 2011 PCr.LJ 774; PLD 2002 SC 687; 2012 MLD 814; 2017 MLD 2048; 2010 SCMR 1816 and 2006 SCMR 647 ref.

Zafar and others v. Umer Hayat and others 2010 SCMR 1816 and Nelson Paul alias Salim v. Mst. Asmat Parveen and others 2006 SCMR 647 rel.

(b) Criminal trial---

----Each case was to be decided on its own merits.

Mohammad Masood Khan for Applicant along with Applicant in person.

Shoaib Mirza, Deputy Attorney-General for Pakistan and Muntazir Mehdi, Deputy Prosecutor-General, Sindh for Respondent No.1.

Rashid Ashraf for Respondent No.2 along with Respondent No.2 in person.

2019 P Cr. L J 440

[Sindh]

Before Nazar Akbar, J

IMDAD ALI---Applicant

Versus

The STATE and 7 others---Respondents

Criminal Miscellaneous Application No. 204 of 2018, decided on 19th July, 2018.

Criminal Procedure Code (V of 1898)---

----Ss.265-K & 561-A---Power of court to acquit accused at any stage---Quashing of FIR---Alternate remedy---Scope---Section 561-A, Cr.P.C. was not meant to circumvent and defeat the procedure laid down by the law nor it could be used by the High Court to usurp the power of Sessions Court to provide/extend remedy to aggrieved person which could be obtained by him by approaching the Sessions Court---Phrase 'at any stage' in S. 265-K, Cr.P.C. ensured that remedy of seeking quashing of proceeding was available to the applicant even when he chose to invoke inherent jurisdiction of High Court.

Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; The State through Deputy Prosecutor-General, NAB v. Tariq Mohsin and others 2004 SCMR 1892 and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 ref.

2019 P Cr. L J 451

[Sindh]

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

MUHAMMAD SHAKEEL AHMED KHAN---Petitioner

Versus

ABDUL FATEH and 4 others---Respondents

Constitutional Petition No. D-2633 of 2016, decided on 18th September, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), (b) & 18---Constitution of Pakistan, Arts. 13 & 199---Constitutional petition---Quashing of reference---Principle of double jeopardy---Bail, grant of---Petitioner was facing trial in an earlier reference, thereafter, another reference on same allegations was filed---Petitioner sought quashing of reference as well as his release on bail on principle of double jeopardy---Validity---Both references were authorized on basis of separate complaints received after each other and references were based on separate investigations which disclosed that in each case petitioner along with co-accused through corrupt practices had embezzled hundreds of million of rupees and had caused massive loss to the State exchequer---In earlier reference there were 17 accused and loss was over Rs. 1 billion while in subsequent reference there were 4 accused and loss was approximately Rs. 500 million making a combined total of approximately Rs. 1.5 billion as total loss to the exchequer---Present was not a case of double jeopardy and Art.13 of the Constitution was not attracted since transaction in each reference related to different financial periods---High Court declined to interfere in the matter as both references could proceed in accordance with law---Prima facie sufficient material was available on record to connect petitioner to offence for which he had been charged in subsequent reference---High Court also declined to release accused on bail---Constitutional petition was dismissed in circumstances.

Noor Jahan Mangi and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior and another Civil Petitions Nos.298-K, 309-K, 310-K and 315-K of 2015 fol.

Ms. Farhana Muzaffar v. National Accountability Bureau and 4 others 2017 PCr.LJ 1 and Multiline Association v. Ardeshir Cowasjee PLD 1995 SC 423 ref.

Saadat Hasan for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB for Respondents.

2019 P Cr. L J 475

[Sindh]

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

JAMEEL AKHTAR and others---Petitioners

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Constitutional Petitions Nos. D-1770, D-5599 and D-6276 of 2016, decided on 13th December, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Minor liability---Rule of consistency---Applicability---Petitioners were accused under National Accountability Ordinance, 1999 who sought pre-arrest bails on plea of consistency---Validity---Role of each petitioner was similar to or no worse than that of accused who had already been granted post-arrest bail by the High Court---Petitioners were prima facie entitled to have their pre-arrest bails confirmed on rule of consistency---Amount involved was Rs. 37 lac and under National Accountability Ordinance, 1999 which was meant to deal with cases of mega corruption and liability of each accused would be less than rupees 8 lac per person---Pre-arrest bail was allowed in circumstances.

Muhammad Ramzan v. Zaffarullah 1986 SCMR 1380 rel.

Iftikhar Hussain for Petitioner No.1 (in C.P. No. D-1770 of 2016).

Muhammad Rahman Ghous for Petitioner No.2 (in C.P. No.D-5599 of 2016).

Iftikhar Hussain for Petitioner No. 3 (in C.P. No. D-6276 of 2016).

Yassir Siddiqui, Special Prosecutor, NAB for Respondents.

2019 P Cr. L J 504

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN---Appellant

Versus

ADNAN FAISAL and another---Respondents

High Court Appeal No. 15 of 2012, decided on 2nd August, 2018.

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

----S. 411-A---Code of Civil Procedure (Amendment) Ordinance (X of 1980), S. 15---Companies Ordinance (XLVII of 1984), S. 481---Appeal to High Court in certain cases---Appeal from sentence of High Court under S. 411-A, Cr.P.C.---Criminal proceedings initiated under the Companies Ordinance, 1984---Appeal against acquittal of accused in offences arising out of the Companies Ordinance, 1984---Exclusive applicability of S. 481 Companies Ordinance, 1984 in such cases---Scope---Question before the High Court was whether an order for acquittal passed by High Court exercising original criminal jurisdiction in respect of offences arising out of the Companies Ordinance, 1984 could be impugned in appeal before the High Court under S. 15 of the Code of Civil Procedure (Amendment) Ordinance,1980, or under the procedure prescribed by S. 411-A, Cr.P.C.---Held, that impugned order was rendered in exercise of criminal jurisdiction and not civil, and was a final order and not an interlocutory order, therefore S. 15 of the Civil Procedure Code (Amendment) Ordinance, 1980 did not apply---Section 411-A of the Cr.P.C. would also not apply to the impugned order as the unequivocal provisions of the Companies Ordinance, 1984 would override the same---In respect of criminal proceedings arising out of the Companies Ordinance, 1984, S. 481 of the Code would apply vis-a-vis appeals against acquittal notwithstanding anything contained in the Cr.P.C. and thus S. 411-A, Cr.P.C. would not provide a right of appeal in the impugned order---Appeal being not maintainable, was dismissed in circumstances.

Abdul Rahim Khan v. The State 1991 MLD 2448 and Brothers Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1995 SC 543 ref.

Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan PLD 1952 SC 455; The State v. Abdul Samad and another PLD 1984 Quetta 72 and Gulistan Textile Mills and another v. Soneri Bank Limited and another 2018 CLD 203 rel.

(b) Interpretation of statutes---

----Special law---Maxim: Generalia specialibus non derogant---Specific provisions of a special law would displace general law which would be deemed to be inapplicable.

Gulistan Textile Mills and another v. Soneri Bank Limited and another 2018 CLD 203 rel.

Khalid Mehmood Siddiqui for Appellant.

Asghar Kundi and Munir Ahmed for Respondent No.2.

2019 P Cr. L J 521

[Sindh]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUHAMMAD ASIF---Appellant

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeal No. 259 of 2017, decided on 6th March, 2018.

(a) Administration of justice---

----Cases were to be decided expeditiously, but the courts were bound to adopt legal course and dispose of the cases after paying due attention to the record and application of judicial mind just to avoid violation of any provisions of law---Courts were not supposed to proceed with the cases in haste and slipshod manner---For ensuring fair trial and dispensation of justice, courts were bound to fulfil all formalities and legal requirements.

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

----Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 10-A---Possessing explosive substances, act of terrorism---Appreciation of evidence---Fair trial---In the present case, High Court had ordered retrial by framing a fresh charge against accused and recording of evidence of the prosecution witnesses and defence, inasmuch as the charge was found to be defective---Trial Court, in compliance though framed fresh charge, but did not record fresh evidence in the matter, and based conviction of accused by way of adopting earlier evidence recorded in the first phase---When the charge was defective, the entire evidence recorded on the basis of such charge was useless and was to be discarded---Trial Court was supposed to record the whole evidence of the prosecution as well as of defence afresh on the basis of fresh charge and decide the matter in accordance with law---Procedure adopted by the Trial Court was reflective of miscarriage of justice and violation of Art.10-A of the Constitution; which provided right to fair trial---Conviction and sentence recorded by the Trial Court on the basis of earlier evidence, adopted with the consent of the parties, were illegal and not admissible in the eye of law---Procedure adopted by the Trial Court was not warranted by law and absolutely illegal particularly in the circumstances when accused was facing trial in a case punishable under Ss.4/5 of Explosive Substances Act, 1908 and S.7 of Anti-Terrorism Act, 1997---Conviction and sentence awarded to accused was illegal, because the pre-requisites of fair trial were not provided to accused---Accused in custody could not be held responsible for any omission or reckless act of prosecution---Conviction and sentence recorded by the Trial Court were set aside and accused was acquitted and was ordered to be released forthwith, in circumstances.

S.A.K. Rehmat v. The State 2005 SCMR 364; AIR 1949 All 509; 50 Cri. L. Jour 923; AIR 1958 Kar. 94; ILR 1959 Ker. 283; 1958 Crl. L. Jorn 516; AIR 1942 Pat. 143; 43 Cri. L. Jour 134; AIR 1922 Lah. 135; 23 Cri. L. Jour 5 and Zahoor v. The State 1991 MLD 1951 ref.

(c) Criminal trial---

----Burden of proof, shifting of---Scope---Prosecution was duty bound to shift the burden of proof on the shoulder of accused by producing its witnesses in court and once the prosecution succeeded in discharging that duty in a manner as described by law, the onus shifted to the accused to disprove the allegation.

Ajab Khan Khattak for Appellant.

Muhammad Iqbal Awan, DPG for the State.

2019 P Cr. L J 549

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Faheem Ahmed Siddiqui, JJ

ALLAHYAR and another---Applicants

Versus

JUDGE, ANTI-TERRORISM COURT NAUSHAHRO FEROZE and 2 others---Respondents

Criminal Revision Application No. D-187 of 2016, decided on 17th August, 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---While deciding the issue of jurisdiction, courts were required to examine FIR, statements recorded under S. 161, Cr.P.C., mashirnamas and other documents available with the prosecution.

Kashif Ali's PLD 2016 SC 951 rel.

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

----Ss. 302, 324, 379, 504, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, theft, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---"Terrorism"---Scope---Petition for transfer of case from Anti-Terrorism Court to ordinary criminal court, dismissal of---Petitioners contended that previous enmity existed between the parties and there was compromise between the parties and complainant admitted the compromise and had no objection for the transfer of present case to the ordinary court, enabling them to file application for compromise and resolve their issue on permanent basis---FIR did not disclose enmity between the parties---Validity---Record showed that motive of the incident was, prima facie, old blood-feud between the parties, which had always been considered as one of the circumstances to bring a case out of scope of "terrorism"---Normally, in such like matter, the prime object was always to settle personal score rather than creating a sense of terrorism---Question of jurisdiction was not to be dependent upon consent or wish of a party but was to be decided/determined on defined criterion---Act of compromise for promoting harmony between two parties was worth appreciating but that alone would never be decisive for determining question of jurisdiction of Special Court---Record transpired that fact of old enmity/private vendetta was deliberately concealed by complainant so as to give jurisdiction to special court, hence in such eventuality no objection, given by complainant at such stage, might be taken as one of the circumstances for determining jurisdiction---Exceptions defined for taking cognizance by special court even in existence of private vendetta between parties, prima facie, were not available---First Information Reports lodged by the accused party and compromise between the parties as well as place of incident and the manner in which the incident had happened, showed that it was not a case of "terrorism"---Application was allowed accordingly.

PLD 2001 SC 521; PLD 1972 SC 271; PLD 1978 Quetta 187; 2007 SCMR 142; 2008 SCMR 1631 and 2016 PCr.LJ 961 ref.

Sajjad Ahmed Chandio for Applicants.

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

2019 P Cr. L J 567

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

PEHLIWAN AHMED GOPANG---Applicant

Versus

The STATE and others---Respondents

Criminal Miscellaneous App. No. S-141 of 2017, decided on 9th February, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Lodging of FIR, application for---Dismissal of application---Buffaloes of the applicant were sitting in a pond for their routine bath, when a car fell down in the pond, due to which his three buffaloes died, while one suffered injuries---Applicant approached SHO concerned for lodging FIR, but SHO did not register FIR and applicant filed application under Ss.22-A, 22-B, Cr.P.C., before Ex-officio Justice of Peace---Said application having also been dismissed, applicant filed application before High Court under S. 561-A, Cr.P.C.---Grievance of the applicant was to receive compensation regarding loss sustained by him---Validity---Most appropriate and efficacious remedy to the applicant was available in a tortuous action through which he would be able to get compensation as he desired---Lodging of FIR would not open the room for compensation to the applicant for which appropriate action was a suit for damages---Impugned order being proper, application of the applicant was dismissed, in circumstances.

Javed Ali Gopang for Applicant.

Safdar Ali Ghouri for Respondent No.4.

Sardar Ali Shah, DPG for the State.

2019 P Cr. L J 622

[Sindh]

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

Sheikh RIAZUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 313 of 2012, decided on 12th March, 2018.

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

----Ss. 9(c), 13 & 15---Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Guilt, proof of---Record showed that huge quantity of narcotic was recovered on information, provided by the accused while in custody---Control of Narcotic Substances Act, 1997 was comprehensive in nature and covered all the acts and omissions whereby one physically possessing or had been in control of narcotics for any purpose, including import or export---Question of guilt would not be dependent upon establishing physical possession--- If the circumstances established active control or knowledge or that accused otherwise dealt with such recovered narcotics, would be sufficient proof so as to recognize discharge of burden thereby burdening the accused to prove the contrary.

Muhammad Noor and others v. The State 2010 SCMR 927 and Askar Jan v. Muhammad Daud 2010 SCMR 1604 rel.

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

----Ss. 9(c), 13 & 15---Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Prosecution case was that accused made preparation to smuggle huge quantity of charas to foreign country---Accused was arrested and on his pointation, 58 cartons containing 1745 packets of charas were recovered from the container and on weighing, one packet came to one kilogram, total 1745 kilograms charas, was recovered---Each slab of charas was separated from each carton total 58-slabs and sealed for the purpose of chemical analysis, while remaining were sealed at the spot---One foreigner, who was his partner in the offence and gave him 200,000/- UAE Darham was also arrested on his disclosure---Record showed that accused was arrested in consequence of spy information, who then pointed out the specific container, led the police party to such sealed container---Seal was broken in presence of mashirs and cartons covered with plastic bags were found therein---Said huge quantity of charas was ready for smuggling by the accused to foreign country---Said circumstances were sufficient to conclude that the accused was in active knowledge least to have dealt with such attempt to export such huge quantity of narcotic; in such view of the matter, contention of defence that accused had no knowledge of the availability of charas in the consignment was untenable---Record revealed that prosecution witnesses remained consistent in respect of time, place and mode of recovery, despite lengthy cross-examination---Accused retracted from confessional statement, recorded under S. 164, Cr.P.C.; despite its retraction, such confession was a corroborative piece of evidence---Chemical analysis report regarding charas was sufficient to prove that the substance recovered from the accused could be used to cause intoxication---Recovery at pointation of the accused prima facie had established the offence, hence, accused was to prove the contrary---In the present case, though, the Investigating Officer and other prosecution witnesses were employees of Anti-Narcotics Force but they had no animosity or rancour against the accused to plant such a huge quantity of narcotic material upon him---Absence of the enmity or any valid reason for false involvement would be a circumstance tilting the case against the accused---Circumstances established that prosecution had succeeded to bring the guilt of accused beyond any doubt---Appeal was dismissed in circumstances.

Gul Muhammad v. The State 2011 SCMR 670; Mst. Rubina Bibi v. State 2001 SCMR 1914 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

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

----Ss. 9(c), 13, 15 & 25---Criminal Procedure Code (V of 1898), S. 103---Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Prosecution case was that 1745-kilograms of charas was recovered on the pointation 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---Section 25 of Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C. in narcotics cases---Non-inclusion of any private witness was not a serious defect to vitiate the conviction of accused---Appeal against conviction was dismissed in circumstances.

(d) Criminal trial---

----Conviction---Scope---If the accused was otherwise found connected with the offence, mere procedural omissions and even allegation of improper conduct of investigation would not help the accused.

The State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

(e) Criminal trial---

----Witness---Official witness---Competence---Mere status of one as an official would not prejudice the competence of such a witness, unless he was proved to be interested and had motive for falsely implicating the accused or had previous enmity with the person involved.

Farooq Khan v. The State 2008 SCMR 917 and Zafar v. The State 2008 SCMR 1254 rel.

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

----Ss. 9(c), 13 & 15---Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences---Appreciation of evidence---Acquittal of accused on technicalities---Scope---Transportation or possession of narcotics---Technicalities of procedural nature or otherwise were to be overlooked in the larger interest of the country---Approach of the court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inference and conclusions, while deciding such cases.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

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

----Ss. 9(c) & 29---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Possession of narcotics---Presumption---Onus to prove---If prosecution had prima facie proved recovery from or at pointation of accused, presumption would be that the accused was guilty unless the accused proved that he was not in possession of such drugs---Burden of proof, in such circumstances, would be upon the accused to establish his innocence and absolve himself from the allegations of recovery of substances, while the prosecution had only to show by evidence that the accused was in physical custody or directly concerned with recovered narcotic substance.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotics---Appreciation of evidence---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Record showed that recovered charas was sent to the Chemical Examiner after the delay of three days, while it was to be sent to the Chemical Examiner within seventy two hours of recovery---Defence objected that due to delay, positive report could not be relied upon---If safe reach of narcotics to the Chemical Examiner had been established, the delay would not of any legal consequence---Such rules were directory in nature and same nowhere placed a bar on the Investigating Officer for not sending the sample beyond seventy two hours of the seizure or that such delay would be sufficient to doubt the report on that count alone.

Muhammad Sarfraz v. The State 2017 SCMR 1874 rel.

Khalid Mehmood Kiyani for Appellant.

Habib Ahmed, Special Prosecutor for ANF/State.

Date of hearing: 15th February, 2018.

2019 P Cr. L J 648

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

SHAH MUHAMMAD---Applicant

Versus

SHO/INCHARGE INVESTIGATING OFFICER and 10 others---Respondents

Criminal Misc. Application No. S-160 of 2012, decided on 1st June, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 190--- Penal Code (XLV of 1860), Ss. 302, 452, 337-A(i), 337-H(2), 337-L(1), 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, causing Shajjah-i-Khafifah, hurt by rash or negligent act, rioting, common object---Appreciation of evidence---Cognizance of offence by Magistrate--- Procedure--- Quashing of order, application for---Applicant had impugned order passed by Magistrate, whereby he accepted the report of Police for disposal of FIR under "B" class---Applicant lodged FIR alleging therein that respondent after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons by committing trespass in his house, committed murder of his father and injured eight other persons (male and female)---Police, on investigation, submitted report to Trial Magistrate for cancellation of the FIR under "B" class and Trial Magistrate cancelled the same by way of impugned order---Validity---Magistrate must always keep in mind that the criterion for examining the material for taking cognizance or otherwise was not similar to that of evaluation of evidence---Magistrate, could competently order for disposal of the case under any of the classes i.e. 'A' to 'C', but such view must not be a result of any deep analysis of fact nor effects of law---Duty of the Investigating Officer was only to collect evidence and to place the same before the competent court of law---Investigating Officer not an expert in the matter of determining the guilt or innocence of accused persons---Mere delay in lodging of FIR, was not fatal or sufficient enough for determining the fate of offence (allegations)---In the present case, allegation was of trespass and assault in consequence whereof not only deceased, but eight more persons (male and female) allegedly had received injuries---Such was not a case which could have been disposed of under 'B' class, because injuries sustained by injured allegedly during course of incident were sufficient to indicate happening of the offence---Right to file direct complaint did not come to an end, after lodging of FIR and after taking of cognizance---Availability of such course would never be an excuse for a Magistrate to perform his duty under S.190, Cr.P.C., within settled parameters as well as commandments of the law---Impugned order, was not sustainable at law, prima facie appeared to be result of considering/appreciating things in a manner which legally could not be permitted to be considered/appreciated at the time of exercising jurisdiction under S.190, Cr.P.C.---Impugned order was set aside, and matter was remanded by the High Court to the Magistrate with direction to pass fresh and appropriate order as per law after hearing all the parties.

Bakhsh Ali v. The State 2013 YLR 1948; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354; Luqman Ali v. Hazaro and another 2010 SCMR 611; Muhammad Sharif and 8 others v. The State 1997 SCMR 304; Mst. Amna Bibi v. The State and 5 others 2008 PCr.LJ 956; Syeda Afshan v. Syed Farukh Ali and 3 others PLD 2013 Sindh 423; Nazimuddin v. 2nd Civil Judge and 7 others 2017 PCr.LJ Note 26; Hakim Ali v. The State PLD 2006 Kar. 302; Muhammad Ahmed v. The State 2010 SCMR 660; Haji Muhammad Hanif v. The State PLD 1991 Lah. 214; Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 and Asfandyar and another v. Kamran and another 2016 SCMR 2084 ref.

Abdul Baqi Jan Kakar for Applicant.

Shamsuddin Kobhar for Respondents.

Sardar Ali Shah Rizvi, DPG.

Date of hearing: 27th April, 2018.

2019 P Cr. L J 793

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

STATE through Prosecutor-General Sindh---Appellant

Versus

PIYARO and 5 others---Respondents

Criminal Acquittal Appeal No. 3 of 2015, decided on 28th August, 2018.

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

----Ss. 302(b), 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, 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, act of terrorism---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused party made straight firing upon the police party in order to commit their murder, police party also retaliated the firing, which continued for about 10/15 minutes---Accused party went away towards eastern side and complainant party went ahead and found one Police Constable dead and other in injured condition---Record reflected that the names and features of accused had not been given in the FIR---Complainant and other witnesses had specifically stated that they had seen the accused persons on the light of electric bulbs and search light, hence they would identify the accused on seeing again but record revealed that no identification parade was arranged---Prosecution had examined complainant and the injured as eye-witnesses---Complainant in his evidence deposed that he had seen the accused persons who were with open faces and could identify them if seen again---Evidence of complainant showed that neither the accused persons were shown to him in court nor he disclosed that accused present in court were the same---Injured had implicated only one accused and identified him in the court but he was declared hostile by the prosecution, therefore, his evidence was not helpful to the prosecution---Chowkidar and helper of petrol pump, who were said to be the victims of offence as they were robbed by the accused, were not examined by the prosecution---Evidence of Police Officials, in circumstances, could not be relied upon without independent corroboration which was lacking in the present case---None was injured from either side, the alleged police encounter nor the police mobile was hit by firing made by the accused nor any villager was cited as witness of the incident---Weapons were not recovered from the accused and the empties secured from place of wardat were not sealed at spot nor sent to the expert for verification---No independent person from the village was joined in recovery proceedings, thus recovery of weapons had become doubtful---Circumstances established that the findings of the Trial Court were neither perverse nor arbitrary, and the complainant had failed to point out any misreading or non-reading of evidence---Appeal being devoid of merits was dismissed, in circumstances.

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

----Ss. 302(b), 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, 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, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Medical evidence would confirm ocular account with regard to seat of injury, nature of injury and kind of weapon used in the commission of offence but could not connect the accused with the commission of crime---Medical evidence was always considered as supporting corroborative piece of evidence, hence injuries by themselves were not sufficient to identify the culprit.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.

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

----S. 417(2-A)---Appeal against acquittal---Scope--Double presumption of innocence, was attached to the order of acquittal and interference was not warranted, unless the impugned judgment was vague, perverse and arbitrary or against the record.

Haji Amanullah v. Munir Ahmed and others 2010 SCMR 222 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Abdul Rahman Kolachi, DPG for Appellant.

Ali Ahmed Khan for Respondent No.1.

2019 P Cr. L J 841

[Sindh]

Before Salahuddin Panhwar, J

QAMAR-UL-ISLAM---Appellant

Versus

XITH ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI SOUTH and another---Respondents

Criminal Appeal No. 160 of 2018, decided on 7th May, 2018.

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

----Ss. 476 & 480---Trial of offences in relation to court---Procedure---Provisions of Ss. 476 & 480, Cr.P.C.---Distinction---Main difference between Ss. 476 & 480, Cr.P.C. is that of competence of court in awarding sentence as well as procedure for recording sentence---Court, under S. 476, Cr.P.C. has discretion to pass any sentence after summary trial while in S. 480, Cr.P.C., court can only competently detain accused and award a sentence of fine not exceeding Rs. 200/- on every day.

Irshad Ahmed v. The State 1992 SCMR 1229 rel.

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

----Ss. 476 & 480---Constitution of Pakistan, Art. 10-A---Offences in relation to court---Fair trial---Procedure---Court enjoys absolute discretion in such like offence either to take cognizance under S. 476 or 480, Cr.P.C.---Once cognizance has been taken, court is left with no option but to follow procedure---If court is of the opinion that though cognizance is taken under S. 480, Cr.P.C. but accused was entitled for punishment in excess to limit of 'not exceeding Rs.200/-' then court has to send case to other court so that accused can enjoy guaranteed right of fair trial and same is the situation when cognizance is taken under S. 476, Cr.P.C.---Taking cognizance under S. 476, Cr.P.C. also means that court may award any legal sentence hence it legally cannot deprive accused from right of fair trial and court is left with no option but to follow procedure of summary trial.

Irshad Ahmed v. The State 1992 SCMR 1229 and Muhammad Mushtaque v. The State PLD 2003 SC 19 rel.

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

----S. 228--- Criminal Procedure Code (V of 1898), Ss. 410, 476 & 486---Interrupting the court---Judgment in abscondence---Judgment in absentia---Accused was a practicing lawyer who was aggrieved of conviction and sentence awarded to him for interrupting court proceedings---Plea raised by accused was that conviction and sentence was awarded at his back without following procedure---Validity---Act of absconding or leaving court could not be treated as admission of guilt which, at the most, could be taken as a circumstance against accused---Such was not sufficient for awarding a sentence whether it was a normal or summary trial---High Court set aside conviction and sentence awarded to accused as Trial Court recorded conviction at the back of accused on mere assumption and without following procedure of summary trial---Any deviation from substantial procedure could not be stamped particularly when same could be portrayed as infringement of guaranteed right of fair trial---Appeal was allowed in circumstances.

Director of Criminal and Penal Prosecutions v. Robert Jodoin 2017 SCMR 1444; Rahimullah Jan v. Kashif and others PLD 2008 SC 298 and The State v. Wali Dad PLD 1962 (W.P.) Peshawar 203 ref.

(d) Criminal Trial---

----Gravity of offence---Procedure---Mere gravity of offence alone would never be sufficient for a deviation from following the procedure.

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

Appellant in person.

2019 P Cr. L J 875

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 307 of 2018, decided on 21st May, 2018.

(a) Criminal trial---

----Heinousness of offence---Effect---Mere heinous nature of offence was not sufficient to convict accused because accused continued with presumption of innocence until found otherwise at trial.

(b) Criminal trial---

----Burden of proof---Scope---Burden was upon the prosecution to prove its case beyond shadow of doubt.

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

----S. 23-A(i)---Criminal Procedure Code (V of 1898), S. 103---Possessing unlicensed arms---Search to be made in presence of witnesses---Appreciation of evidence---Benefit of doubt---Prosecution case was that one .30-bore pistol along with magazine containing two live bullets was recovered from the accused---Accused failed to produce licence of weapon, hence the FIR---Prosecution, in order to establish accusation against accused, had examined three witnesses including complainant---Record showed that police had seen two accused persons in suspicious condition and one accused was apprehended by the police, while the other fled away---Despite the fact that police party was armed with sophisticated weapons second accused fled away easily from the spot---Said fact created doubt in the prosecution case---Evidence of prosecution witnesses showed that place of incident from where accused was arrested was thickly populated area surrounded by houses and shops, but complainant did not associate any independent person of the locality to witness the event---No plausible explanation was offered by the prosecution as to why police did not associate any independent person from the place of incident to witness the arrest and recovery proceedings---Provisions of S. 103, Cr.P.C. were mandatory in nature and could not be ignored without any proper justification---Police was duty bound to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery---No valid reason or plausible explanation had been furnished by the prosecution in that regard---False implication of accused, in circumstances, could not be ruled out---Evidence of prosecution witnesses was contradictory on material particulars, which changed the entire complexion of the case---Reliance could not be placed on the contradictory evidence for maintaining the conviction---Weapon of offence, allegedly recovered from the accused on 15-11-2017, was received in the office of Forensic Division on 17-11-2017 after the delay of about two days and pistol and bullets remained in whose custody during the intervening period had not been explained by the prosecution---No official from the Forensic Division had been examined---Mashirnama of arrest and recovery revealed that one .30-bore pistol along with magazine containing two live bullets, bearing No. PAK2000 AAR Pec CAL-30 was allegedly recovered from the accused, however, Forensic Science Laboratory Report showed one .30-bore pistol No. PK2000 with magazine marked/signed and two .30-bore live cartridges, which number was quite different---No reliance, in circumstances, could be placed on Forensic Science Laboratory Report to maintain the conviction of the accused---Circumstances established that, in the present case, there were number of infirmities/lacunas, which had created serious doubts benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 103---Search to be made in presence of witness---Object---Prime object of S. 103, Cr.P.C. was to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

(e) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance, creating reasonable doubt in a prudent mind would entitle accused, for benefit not as a matter of grace or concession, but as a matter of right.

Tariq Pervez v. The State 1993 SCMR 1345 rel.

Muhammad Jamil for Appellant.

Sagheer Abbasi, Assistant Prosecutor-General, Sindh along with Ms. Tanya Allah Dad, Assistant Prosecutor-General, Sindh for the State.

2019 P Cr. L J 890

[Sindh]

Before Kausar Sultana Hussain, J

Mst. SHELLY NATHANIEL---Petitioner

Versus

IXTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, SOUTH KARACHI and others---Respondents

Constitutional Petition No. S-2329 of 2017, decided on 29th May, 2018.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus petition for recovery of minors from improper custody of father---Father creating negativity/hatred for mother in minds of minors---Short conversation of the Judge with the parents and the minors in his chambers revealed that mother of minors was willing to join the father apparently for the betterment and welfare of the children but the father was reluctant to keep her again in his house as a wife, until and unless he regained her trust; that the father was creating negativity and hatred in the minds of minors against their mother; that such act on part of father was very harmful in shaping positive personality of minors, and they could develop behavioral problems, and loose self-esteem and self-confidence---Children whose parents were separated were innocent and were not to be punished by maligning their minds against any of their parents; they should be told about the positive side of other parent rather than propagating negativity and maligning their minds---Custody of the minors with the father, if not illegal, was at least improper---Mother of the minors could better dispense and bestow, love and affection to the minors of tender ages---Father being an earning person had to remain out from his house in day time, so he could not look after the minors properly---Besides even if other female relatives of the father were looking after the minors yet they were not substitute for a real mother---High Court directed that the father was to hand over the custody of the minors to the mother, however, he may approach the Guardian Court for claiming custody of the minors, if so desired---Constitutional petition was allowed accordingly.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 ref.

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

----S. 491---Constitution of Pakistan, Art. 199---Habeas corpus petition for recovery of minors from improper custody of father---Constitutional powers of the High Court---Scope---High Court was empowered to issue directions in the nature of habeas corpus under S. 491, Cr.P.C., if the custody of the minor was improperly disturbed---Section 491, Cr.P.C. provided a more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of the minor and the High Court could pass an order regarding the temporary custody without prejudice to the right of the parties for final determination of the dispute pertaining to the custody of the minors by the Guardians and Wards Court.

Muhammad Qasim Niazi for Petitioner.

Saghir Abbasi, A.P.G. for Respondents Nos. 1 and 2.

Sajjad Gull Khatri and Mohammad Nazim for Respondent No.3.

2019 P Cr. L J 928

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio, J

ABDUL MAJEED and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-183 of 2016, decided on 28th September, 2018.

(a) Criminal trial---

----Medical evidence---Scope---Medical evidence alone could not identify/connect the accused but helpful to test veracity of eye-witnesses regarding their claim of witnessing incident which they stated in a particular manner.

Ghulam Qadir v. State 2008 SCMR 1221 and Ghulam Mustafa v. State 2009 SCMR 916 rel.

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

----Ss. 302, 324,147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Withholding material evidence---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party made firing on the complainant party, due to which, one person of complainant party died and other sustained injuries---First Information Report showed that deceased received three gunshot wounds on his body, two on the back and one on the right arm, however, medical evidence showed another gunshot wound on the body of the deceased, on the left chest through and through---Medical report showed injury on the skull which was caused by the hard blunt object, which was not mentioned by the complainant---Such contradictions raised serious doubt about claimed presence of the complainant at relevant time else he would have not escaped speaking about fourth gunshot wound as well injury, caused by blunt object---Medical evidence revealed that shots might have been fired from a distance of ten to fifteen feet, while the witnesses contradicted the same---One witness, however, deposed that the accused fired at the deceased at point-blank range---Complainant had not disclosed the exact type of weapon used in the commission of offence but merely stated that the accused were armed with guns---Complainant contradicted his own statement by stating that co-accused was armed with pistol, however on the same point, he stated that said co-accused was armed with repeater gun---Witnesses had their own opinion while disclosing the time at which the incident had taken place, which contradicted with that in the FIR---Time of incident was originally shown to be 3.00 p.m., whereas complainant, in his cross examination, had stated that deceased received a phone call at 3.30 p.m. and they proceeded to the place of incident ten to fifteen minutes later---Eye-witness in his cross examination had deposed that the complainant reached at the place of incident at about 3.00 p.m. and accused was arrested at about 3.30 p.m.---Said witness did not state about the date, time and day of incident---Such contradictory statements raised serious doubt---Complainant deposed that white clothes were worn by the deceased at the time of incident, whereas Trial Court had observed the same to be a khaki shirt and loin cloth, green in colour---Eye-witness, on the same point, had deposed that deceased was wearing brown shirt and loin cloth was black---Case property present in court had a loin cloth, multi-coloured and checkered and a khaki shirt---Said glaring contradictions in statements of claimed eye-witnesses were sufficient to doubt their claim of having seen the manner of incident, hence it was never safe to have relied upon such ocular account for awarding conviction in a case of capital punishment---Record transpired that prosecution did not examine the injured witness though injury on his person could have been taken as a circumstance to believe his presence at relevant time---Failure to examine such a material witness had gone against the prosecution as well opened a room to draw a presumption within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 that had he been examined he would have not supported the prosecution case---Circumstances established that prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Appeal was allowed and accused persons were acquitted, in circumstances.

2010 SCMR 584; 2010 SCMR 424; 1980 SCMR 231; PLD 1967 SC 443; PLD 2004 Kar. 8; 2006 PCr.LJ 639; 2004 PCr.LJ 92; 2002 PCr.LJ 1240; 2001 PCr.LJ 845; 2000 PCr.LJ 1360; 2008 YLR 829; 2008 YLR 2082; 2005 YLR 1629; 2000 YLR 294 and 2001 MLD 619 ref.

Muhammad Akram v. State 2012 SCMR 440 rel.

(c) Criminal trial---

----Ocular evidence---Failure to produce ocular evidence---Effect---Failure to produce ocular evidence was always sufficient for acquittal.

Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(d) Criminal trial---

----Motive/enmity---Scope---Existence of motive/enmity was neither a substantive nor a direct evidence---Motive was not a corroborative piece of evidence either---Motive/enmity was only a circumstance which might lead to commission of the offence---Motive was a starting point for committing a crime---Offence might be perpetrated because of the existence of motive/enmity and it could be a basis to a false charge.

(e) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence could, prove the commission of a criminal offence but two conditions must be met: Firstly, the primary facts from which the inference of guilt was to be drawn must be proved beyond reasonable doubt and secondly, the inference of guilt must be the only inference which was reasonably opened on all the primary facts---No greater cogency could be attributed to the inference based upon particular facts than the cogency that could be attributed to each of those facts.

Regina v. Exall and others (176 ER 850) 1866 and Nasir Javaid and another v. State 2016 SCMR 1144 rel.

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

----Ss. 302, 324,147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Recovery of weapon of offence---Scope---Reliance---Weapon of offence, .12-bore gun was recovered from the possession of accused---Said accused had been acquitted in the case under S. 13(d), Arms Ordinance, 1965---Recovery of weapon of offence from a single accused would not tie all the accused persons to the commission of offence---Recovered weapon was sent to the ballistic expert with a delay of thirteen days and explanation for the same had remained off the record---Such recovery was of inconsequential in circumstances.

(g) Criminal trial---

----Motive---Enmity---Scope---Motive was a double edged sword which cut both ways---Enmity could be a ground for false implication.

(h) Criminal trial---

----Benefit of doubt---Principle---Single infirmity created reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge, made the whole case doubtful---Benefit of all favourable instances in the prosecution evidence would go to the accused, regardless of the fact whether he had taken any such plea or not.

Ghulam Qadir v. State 2008 SCMR 1221; Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryal Ali's case 2009 SCMR 1086 rel.

Amanullah Malik for Appellants.

Afzal Hussain Talpur, APG for the State.

Ghulam Shabbir Dayo for the Complainant.

2019 P Cr. L J 962

[Sindh]

Before Adnan Iqbal Chaudhry, J

Mst. BILQIS BANO and another---Plaintiffs

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and 4 others---Defendants

Suit No. 1808 of 2016, decided on 17th July, 2018.

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

----S. 13(a)---Order freezing the property---Objection---Locus Standi---Even ostensible owner can file claims/objections before Accountability Court under S. 13(a) of National Accountability Ordinance, 1999 though such ostensible owner was not impleaded in reference.

National Accountability Bureau v. Zahida Sattar PLD 2001 Kar. 256 and Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408 rel.

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

----Ss. 12, 13 & 23(b), Proviso--Specific Relief Act (I of 1877), Ss. 42, 54 & 56(e)---Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 9---Suit for declaration and injunction---Rejection of plaint---Jurisdiction barred by law---Scope---Defendant sought rejection of plaint on grounds that in view of specific provisions of Ss. 13 & 23 of National Accountability Ordinance, 1999 suit was not maintainable---Validity---Proviso to S. 23 National Accountability Ordinance, 1999 in a sense provided both remedy and forum of Accountability Court not only to accused but also to other persons mentioned in S. 23 of National Accountability Ordinance, 1999 against restrictions imposed---National Accountability Ordinance, 1999 was special law, remedy and forum so provided therein was exclusive and had ousted jurisdiction of any other court---Claim that plaintiffs held suit properties in their own right and not as Benamidars of accused persons and were free/permitted to deal with same could only be made to and entertained by Accountability Court under proviso to S. 23 National Accountability Ordinance, 1999---Jurisdiction to decide question raised in suit vested exclusively in Accountability Court under proviso to S. 23 of National Accountability Ordinance, 1999 and jurisdiction of civil court under S. 9, C.P.C. was barred---Plaintiff in suit sought to prevent exercise of jurisdiction by Accountability Court under S. 12 of National Accountability Ordinance, 1999 but same was prohibited under S. 56(e) of Specific Relief Act, 1877---Plaint was rejected in circumstances.

Raja Muhammad Zarat Khan v. Federation of Pakistan PLD 2007 Kar. 597 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

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

----Ss. 12 & 23---Jurisdiction of court---Scope---Provision of S. 12 of National Accountability Ordinance, 1999 is an enabling provision which enables National Accountability Bureau or Accountability Court to pass an express order to freeze/transfer of suspected property when such property has come to its knowledge---Provision of S. 23 of National Accountability Ordinance, 1999 is a prohibitory and penal provision intending to act as deterrence to transfer such ill-gotten property, existence of which property can be discovered after transfer---Any grievance against restraints placed both under Ss. 12 & 23 of National Accountability Ordinance, 1999 can only be redressed by Accountability Court under National Accountability Ordinance, 1999.

Shuja Khan Baluch v. Capital Development Authority, Islamabad PLD 2011 Isl. 25 and Chaudhry Muhammad Akram Warraich v. Chairman NAB 2010 YLR 2766 rel.

Khawaja Shams-ul-Islam and Imran Taj for Plaintiffs.

Asif Rasheed for Defendant No.1.

Nemo for Defendant No.2.

Abdullah Munshi for Defendant No.3.

Muhammad Akram Javed, Special Prosecutor along with Javed Ali Lashari, Investigation Officer for Defendant No.4.

Muhammad Khalil Dogar for Defendant No.5.

2019 P Cr. L J 1001

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

KHADIM HUSSAIN KUTRIO and another---Appellants

Versus

The STATE and others---Respondents

Criminal Accountability Appeals Nos. 29 and 30 of 2017, decided on 18th August, 2018.

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

----Ss. 9(a)(vi) & 14(d)---Misuse of authority---Onus to prove, shifting of---Prosecution has to prove charge under S. 9(a)(vi) under National Accountability Ordinance, 1999 before Trial Court thereafter, prosecution would be deemed to have discharged burden of proof and then the burden of proof shifts on accused to rebut presumption of guilt.

PLD 2001 SC 607 rel.

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

----S. 9(a)(vi)---Words 'misuse of authority'---Connotation---Words 'misuse of authority' mean wrong and improper exercise of authority for a purpose not intended by law---Person may in exercise of his authority go wrong due to some ordinary human failing or error but this per se is not actionable under the law---If a person knowingly and deliberately follows a wrong course of action and deviates from purpose of law and proceeds to achieve some other objective either prohibited or not intended by law then he becomes liable under the law.

Oxford (Advanced Learner's) Dictionary (5th Edition), Page 747 and Chambers' 21st Century Dictionary (Revised Edition) Page 877 rel.

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

----Ss. 9(a)(vi)---Misuse of authority---Appreciation of evidence---Extending of benefit---Accused persons were officials of revenue department who were arrested for issuing illegal and bogus revenue record in favour of co-accused persons with regard to precious government lands---Trial Court convicted accused persons and sentenced them to imprisonment for 10 years---Plea raised by accused persons was that they were not proved to be beneficiaries---Validity---Accused persons were representatives of public functionary, deliberately used/exercised their own authority or for that matter usurped power of public functionary with objective of letting absconding accused to gain advantage/benefit and were guilty of offence under S. 9(a)(vi) of National Accountability Ordinance, 1999---In process of misappropriation with record-of-rights and verification of "NOC" on basis of non-existent documents accused persons did not gain any pecuniary benefit for themselves but they gained benefit for absconding co-accused---High Court declined to interfere in conviction and sentence awarded by Trial Court as same was fully supported by evidence on record--- Appeal was dismissed in circumstances.

2006 SCMR 1886; PLD 2008 SC 166; 2008 SCMR 1118; 2009 SCMR 517; 2014 SCMR 985; PLD 2015 Lah. 129; PLD 2016 SC 276; 2017 SCMR 986 and 2018 SCMR 772 ref.

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

----Arts.59 & 61---Handwriting Expert---Opinion---Relevance---Scope---Opinion of Handwriting Expert is relevant but it does not amount to conclusive proof---Evidence of expert is weak type of evidence and is only confirmatory or explanatory of direct or circumstantial evidence---Confirmatory evidence cannot be given preference when confidence inspiring evidence is available.

Mst. Saadad Sultan and others v. Muhammad Zahoor Khan and others 2006 SCMR 193; Yaqoob Shah v. The State PLD 1976 SC 53 and Qazi Abdul Ali and others v. Khwaja Aftab Ahmed 2015 SCMR 284 rel.

Shoukat Hayat for Appellants.

Munsif Jan, Special Prosecutor NAB for Respondents.

2019 P Cr. L J 1023

[Sindh]

Before Muhammad Saleem Jessar, J

ATTA RASOOL and 3 others---Applicants

Versus

Haji MUHAMMAD RAFIQUE and 2 others---Respondents

Criminal Revision Application No. 111 of 2016, decided on 5th March, 2018.

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

----S. 7---Eviction and mode of recovery as an interim relief---Trial Court allowed application filed by complainant, under S.7 of Illegal Dispossession Act, 2005, directing applicants/alleged illegal occupants to put the complainant in physical possession of subject property---Applicants had assailed said order---Validity---Prima facie, applicants had failed to establish their being in 'lawful possession' of property in question---Trial Court, in circumstances, had rightly allowed application filed by the complainant---No justification existed to interfere with said order.

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

----Ss. 7 & 8---Illegal dispossession---Complaint---Interim relief---Applicants had alleged that illegal occupants, during pendency of complaint allegedly had sold the shop in question to another person---Complainant had contended that application was not maintainable, as they being not in possession of shop in question, had lost their locus standi---Validity---Complainant had prayed for dismissal of the application---Contention of complainant was without any substance---If such proposition was accepted it would open a room for unauthorized occupant to defeat, least frustrate an order for restoration, which normally would be in respect of person complained as illegal occupant---Neither mere change of hands nor manoeuvre by unauthorized occupant would be a sufficient ground to defeat a lawful order for possession or title even, which was obtained by an aggrieved person from a competent court of law---Mere delivery of possession by unauthorized occupants to any body under any plea would not be an excuse to legal consequences of an order passed under Ss.7 & 8 of Illegal Dispossession Act, 2005.

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

----S. 7--- Illegal dispossession--- Complaint--- Interim relief---Applicants/alleged unauthorized occupants had raised legal objection to the maintainability of the complaint on the ground that criminal complaint could not be filed through Attorney---Applicants also moved an application that proceedings could be stayed till the said legal objection regarding locus standi of the Attorney to file complaint was finally decided---Validity---Complaint need not necessarily be made by the person injured, but could be made by the person aware of the offence---Complaint could be filed by the attorney acting on behalf of original owner of disputed property---Objection raised by applicants to the maintainability of the complaint by the attorney, carried no weight.

Abdul Hafeez v. Usman Farooqui through Daughter Sharmila Farooqui and another 2008 PSC (Crl.) 959 ref.

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

----S. 7---Interim relief, scope and grant of---Provisions of S.7 of Illegal Dispossession Act, 2005, were a deliberation whereby "interim relief" could well be granted in favour of owner/occupier of property, if during trial, Court was satisfied that accused was prima facie not in "lawful possession"---Exercise under S.7 of Illegal Dispossession Act, 2005 had not been restricted to any particular stage, but could well be exercised before recording of evidence or completion thereof---Interim order (relief) would never necessarily control the fate of main complaint case which otherwise had to be decided on conclusion of trial---Wisdom of deliberate insertion of interim relief, must always be given its weight, because the object of the Illegal Dispossession Act, 2005, was to protect the lawful owners, which, surely, would include right to be put in possession as early as possible even by course of interim relief.

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

----Ss. 3, 6, 7 & 8---Illegal dispossession---Remedy provided by the Illegal Dispossession Act, 2005---Remedy, provided by Illegal Dispossession Act, 2005, could not be defeated, even if accused/unauthorized occupant would come with any claimed status, including tenant and purchaser, even if otherwise, the offence, as described in the Act appeared to have been committed i.e. dispossession of lawful owner or occupier from immovable property, without any lawful authority.

Muhammad Ismail Nizami and another v. Javed Iqbal and another 2016 SCMR 2039 ref.

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

----Ss. 54 & 55---Sale of immovable property---Agreement of sale---Scope---Sale agreement, would not confer any title on the person in whose favour such an agreement was executed; it, in fact, only grant the right to sue for such a title---Till final outcome of the litigation, such a person, could not be heard to deny the title of the owner or to deprive him of any benefits accruing to him or arising out of the property.

Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 ref.

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

----Ss. 3 & 7---Prevention of illegal possession of property---Interim relief---Once the ingredients of S.3 of the Illegal Dispossession Act, 2005, appeared to have constituted the remedy, including that of interim relief, same could not be denied, merely with reference to a sale agreement; else the object and purpose of Illegal Dispossession Act, 2005, would stand frustrated which otherwise was insisted to be protected, regardless of pendency of any civil litigation or claimed title therein---Purchaser would continue enjoying all his rights arising out of sale agreement, and could well be put into vacant possession of subject matter, on success of his only available right i.e. to file a suit for specific performance of contract, which, could include compensation.

Mohammad Akbar Khan for Applicants.

Mohammad Ashraf Kazi and Arshad Ali Tanoli for Respondent No.1.

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

2019 P Cr. L J 1042

[Sindh (Hyderabad Bench))]

Before Naimatullah Phulpoto andShamsuddin Abbasi, JJ

YASEEN KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-303 and Confirmation Case No. 16 of 2010, decided on 29th May, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Constitution of Pakistan, Art. 10-A---Qatl-i-amd---Appreciation of evidence---Motive, failure to prove---Mitigating circumstances---Due process of law---Accused was deaf and dumb by birth who was convicted by Trial Court under S. 302(b), P.P.C. and was sentenced to death---Accused assailed his sentence only, on the plea of mitigating circumstances---Validity---No independent evidence was available on record that accused had grudge against deceased till the incident occurred---If prosecution asserted a motive but failed to prove the same then such failure on part of prosecution could have reacted against sentence of death passed against a convict of capital charge---Accused was born deaf and dumb and was not capable to understand judicial proceedings as reflected from orders of Trial Court---Services of interpreter were provided to accused up to the stage of framing of charge only---Services of counsel on State expenses were provided to accused and there was nothing on record that counsel who was appointed on State expenses was able to get instructions from the accused who was deaf and dumb---Accused was incapable of making his defense and Trial Court did not act according to provisions of Ss. 464 & 465, Cr.P.C.---Trial Court also failed to conduct trial in terms of Art. 10-A of Constitution---High Court converted death sentence of accused into imprisonment for life---Appeal was allowed accordingly.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034; Liaquat Ali v. The State 2009 SCMR 91; Irfan Ali v. The State 2015 SCMR 840; Zahoor alias Bholi v. The State 2018 MLD 246 and Karamat Hussain v. State through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and another 2018 YLR 685 ref.

Ali Bux and others v. The State 2018 SCMR 354; Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035 and Qaddan and others v. The State 2017 SCMR 148 rel.

Syed Muhammad Waseem Shah for Appellant.

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

2019 P Cr. L J 1064

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeals Nos. 173, 174 and Confirmation Case No. 2 of 2015, decided on 31st October, 2018.

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

----Ss. 367 & 225---Anti-Terrorism Act (XXVII of 1997), S. 7---Penal Code (V of 1860), S. 302---Act of terrorism---Qatl-i-amd---Contents of judgment---Scope---One sentence for two separate offences---Charge, framing of---Error---Effect---Trial Court awarded one death penalty for two separate offences under S. 7 of Anti-Terrorism Act, 1997 and S. 302, P.P.C.---Validity---Held, Trial Court should have given separate conviction and sentence in respect of each offence charged---One death penalty had been awarded for offences under S. 7 of Anti-Terrorism Act, 1997 and S. 302, P.P.C. and as such was a defect in the judgment and violation of S. 367, Cr.P.C.---Separate charge for each offence had also not been framed as required by law, however, since failure to do so based on the peculiar facts and circumstances of the case did not cause any prejudice to the appellant, therefore, case was not remanded to Trial Court for reframing of the charge and re-recording of evidence---High Court set aside the judgment and directed the Trial Court to write a fresh judgment---Appeal was disposed of accordingly.

Irfan v. Mohammad Yousuf 2016 SCMR 1190 ref.

Mohammed Mumtaz Qadri v. The State PLD 2016 SC 17 rel.

(b) Judgment---

----Appellate Court, duty of---Court is to ensure that judgments are handed down strictly in accordance with law---If any legal errors are found then they are not to be ignored if they cause prejudice to either party and if such errors are curable then appropriate steps are taken to rectify the same.

(c) Administration of justice---

----Duty of judge is to decide case in accordance with the oath of office in accordance with the law of the land.

Mohammed Mumtaz Qadri v. The State PLD 2016 SC 17 rel.

Amjad Hussain for Appellants.

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

2019 P Cr. L J 1082

[Sindh]

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

Mst. RAHILA BATRA---Petitioner

Versus

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

Constitutional Petition No. D-456 of 2018, decided on 9th March, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 17(a)---Criminal Procedure Code (V of 1898), S. 465---Lunatic, declaration of---Proceedings---Husband of petitioner was facing trial under National Accountability Ordinance, 1999---Plea raised by petitioner was that without constituting Medical Board, Trial Court had declined to declare her husband as lunatic---Validity---Trial Court made its own assessment of accused who had been appearing before it on a regular basis and was not of such unsoundness of mind and incapable to make his defence---Order passed by Trial Court was both a detailed and speaking order and it had attended all relevant issues---High Court declined to interfere in the order passed by Trial Court---Constitutional petition was dismissed in circumstances.

Mohammad Ilyas Khan for Petitioner.

2019 P Cr. L J 1107

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

PIR BUX SAMOON and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Interior, Islamabad and others---Respondents

Constitutional Petitions Nos. D-229, D-295 and D-919 of 2018, decided on 15th May, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi), (b) & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Misuse of authority and embezzlement---Court, duty of---Petitioners were government officials who were arrested for misusing of their authorities and causing loss to national exchequer---Validity---Reference mentioned that accused persons in active connivance with one another were involved in corruption and corrupt practices---Accused persons misused their authority with active connivance of one another and were involved in corruption and corrupt practices---Accused persons had allegedly misused their authority to embezzle government funds amounting to Rs.678.946 million and had committed offence of corruption and corrupt practices as defined in S. 9(a) and subsections thereto punishable under S. 10 of National Accountability Ordinance, 1999---Court could not remain oblivious of undeniable fact that tendency of corruption in every filed had become a threatening danger to State economy, striking on its roots---Public money, allocated for social sector and economic wellbeing of poor people was consistently embezzled/misappropriated at a large scale in result majority of population was deprived of essential daily utilities like pure drinking water, health care and education facilities etc.---High Court observed that court was to apply accountability laws/anti-corruption laws somewhat rigidly at bail stage against accused persons---While dealing with bail matter to an accused person charged for corruption and also at the time of conviction, once the case was proved against him then Court was not supposed to show any mercy by taking a lenient view in the matter of sentence---Bail was declined in circumstances.

Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary, Ministry of Cabinet Division and 2 others PLD 2007 Kar. 597; Nisar Ahmed Ansari through his real son v. Federation of Pakistan through Secretary and 2 others 2016 PCr.LJ 761; Maqbool Ahmed Sheikh v. The State 2014 YLR 2644; Muhammd Waqas v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others 2017 PCr.LJ Note 171; Dr. Allah Nawaz A. Qazi v. The State through Chairman NAB 2008 SCMR 196; Abdul Jabbar v. The State through Director General (NAB) 2015 YLR 108; Athar Ali Abbasi v. The State and another 2017 PCr.LJ Note 167; Sarfraz Ahmed and another v. The Chairman National Accountability Bureau (NAB) through Chairman and others 2016 PCr.LJ 79; Syed Qasim Shah v. The State 2009 SCMR 790; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Muhammad Farooq Shah and another v. The State through National Accountability Bureau Balochistan, Quetta 2018 PCr.LJ 403; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144; Maqbool Ahmed Lehri and another v. NAB and another 2016 SCMR 154; Tarique Saeed and another v. Chairman, National Accountability Bureau and 2 others 2005 YLR 445; Shoaib Warsi and another v. Federation of Pakistan and others PLD 2017 Sindh 243; Jamil A. Durrani v. The State PLD 2003 Kar. 393; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCMR 932 and Asif Ali Zardari v. The State through NAB, Islamabad 2005 YLR 717 ref.

Muhammad Yousuf Leghari for Petitioners (in C.P. No. D-229 of 2018).

Muhammad Jameel Ahmed for Petitioners (in C.P. No. D-295 of 2018).

Abdul Majeed Khoso for Petitioners (in C.P. No. D-919 of 2018).

Jangu Khan, Special Prosecutor NAB along with Fiaz Ahmed, I.O. NAB.

Lutufullah Arain, D.A.G.

2019 P Cr. L J 1133

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Arshad Hussain Khan, JJ

Mst. MARVI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-16 and D-41 of 2017, decided on 11th January, 2018.

(a) Criminal trial---

----Heinousness of offence---Scope---Mere heinous nature of the offence was not sufficient to convict the accused because the accused continued with presumption of innocence until found otherwise at the end of the trial.

(b) Criminal trial---

----Burden of proof---Scope---Burden was always upon the prosecution to prove the case beyond shadow of doubt.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 20-kilograms charas in shape of slabs was recovered from the vehicle of the accused persons---Record showed that the alleged incident took place on the relevant date and time at highway, which as busy road for traffic and traffic were available at the time of incident, shops were over there and it was evening time---Despite the said fact, complainant, who was also Investigating Officer of the case did not associate any independent person from the locality to witness the arrest and recovery proceedings---Provisions of S. 103, Cr.P.C. though were not attracted to the cases of personal search of the accused, however, where alleged recovery was made on road side, which was meant for heavy traffic and shops were available there as in the present case, omission to secure independent mashirs, particularly, in case of a snap checking could not be brushed aside lightly by the court---Investigating Officer of the police or such other force, under S. 25 of Control of Narcotic Substance Act, 1997, was not authorised to exclude independent witnesses and could not do away with principle of producing the best available evidence---No specific bar existed under the law against the complainant who was also Investigating Officer of the case, but being the complainant, it could not be expected that as an Investigating Officer he would collect any material which go against the prosecution and give benefit to the accused---Evidence of such officer, therefore, was a weak piece of evidence and for sustaining a conviction it would require independent corroboration which lacked in the present case---False implication of the accused persons could not be ruled out due to non-association of independent witness as mashir in the present case---Record showed that the evidence of the prosecution witnesses was contradictory to each other on material particulars of the case---Description of case property had not been mentioned in the memo of arrest and recovery, therefore tampering in the case property under the circumstances of the case could not be ruled out---Memo of arrest and recovery was prepared on 2.6.2015 whereas case property was received by Chemical Examiner on 4.6.2015 for examination after the delay of two days---Case property was retained by whom during the intervening period had not been explained by the prosecution---No official from the Forensic Science Laboratory had been examined to corroborate the case of prosecution, therefore no reliance could safely be placed on chemical report for conviction of accused on the basis of contradictory evidence---Accused had claimed that she had lodged FIR under Ss. 392, 452 & 506(b), P.P.C. against complainant and mashir of the present case---Co-accused had claimed enmity against complainant party on quarrel of children, therefore, according to them enmity had been established between them as such complainant had falsely involved the accused persons in the case---Plea raised by the accused persons appeared to be more plausible and convincing whereas the stand of the prosecution appeared to be doubtful, in circumstances---Several infirmities were available in the prosecution case, which had created reasonable doubts about the guilt of the accused persons, benefit of which would resolve in their favour---Appeal was allowed and accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Desser Mal v. The State 2007 PCr.LJ 462; Muhammad Sarif Baloch and another v. The State 2009 SCMR 536; Muhammad Shafique v. The State 2010 PCr.LJ 458; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Abdul Manan and another v. The State 2008 PCr.LJ 1268; Wahib Bux v. The State 2001 YLR 2958; Ghulam Qadir v. The State PLD 2006 SC 61 and Tariq Mehmood v. The State PLD 2009 SC 39 ref.

Nazir Ahmed v. The State PLD 2009 Kar. 191; Muhammad Khalid v. The State 1998 PCr.LJ 808 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

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

----S. 103---Search to be made in presence of witness---Object---Prime object of the said provision was to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

Ahsan Gul Dahri for Appellant (in Criminal Appeal No.D-16 of 2017).

Mian Taj Muhammad Keerio for Appellant (in Criminal Appeal No. D-41 of 2017).

Syed Meeral Shah, APG for the State.

2019 P Cr. L J 1164

[Sindh (Larkana Bench)]

Before Khadim Hussain Tunio, J

MUHAMMAD MOOSA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-98 of 2018, decided on 29th June, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 353, 114, 148 & 149---Qatl-i-amd, assault, abetment of offence in presence of abettor, rioting, unlawful assembly---Post-arrest bail, refusal of---Statutory ground---Delay in conclusion of trial---Scope---Question was as to whether directions issued by the High Court to the Trial Court for concluding the trial in stipulated period were mandatory or directory in nature---Scope---Petitioner/accused contended that he was entitled for the concession of bail as Trial Court had not concluded the trial in period of six months as directed by the High Court---Record revealed that complainant and his witnesses had been in attendance before the Trial Court but their evidence could not be recorded for the reason that legal heirs of deceased had entered into compromise with some of the co-accused and process of effecting compromise between the parties had taken sometime, and the case could not proceed; however, at the moment the case was ripe for recording of evidence---Directions issued by the High Court were not mandatory but directory in nature, as such petitioner could not claim bail on said ground as matter of right---Petitioner was refused bail, in circumstances.

Nisar Ahmed v. The State and others PLD 2016 SC 11; Muhammad Nawaz alias Deno and another v. The State Criminal Bail Application No. D-817 of 2001 and Abdul Qadir Sahar v. The State PLD 2004 Kar. 287 ref.

Ghulam Shabir Shar for Applicant.

Muhammad Afzal Jagirani for the Complainant.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 P Cr. L J 1201

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

MUKHTIAR ALI---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Misc. Application No. S-51 of 2018, decided on 18th September, 2018.

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

----Ss. 22A(6)(iii) & 561-A---Ex-Officio Justice of Peace---Section 22A(6)(iii), Cr.P.C.---Scope---Revenue record, entry in---Jurisdiction---Applicant was aggrieved of direction issued by Ex-Officio Justice of Peace to revenue authorities to keep entry in revenue record---Validity---Ex-Officio Justice of Peace was not authorized under S. 22A(6)(iii), Cr.P.C. to issue direction to revenue authorities to maintain record of rights as the same was aimed to provide a watch over acts and omissions of police only---Order passed without having any lawful power (jurisdiction) once had come to notice of High Court could well be examined even without any application---High Court set aside order passed by Ex-Officio Justice of Peace---Application was allowed accordingly.

(b) Jurisdiction---

----Scope---Jurisdiction is meant to power to hear and decide a legal controversy between parties which can be vested by none but the law alone---Absence of such power is alone sufficient to render such order as without jurisdiction---No order which is passed in excess of jurisdiction can be protected on the point of limitation.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 rel.

Habibullah Ghouri for Applicant.

Abdul Rasheed Soomro for Private Respondent.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 P Cr. L J 1218

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

MOHAMMED QASIM and another---Applicants

Versus

The STATE---Respondent

Bail Application No. 1974 of 2017, decided on 16th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Qanun-e-Shahadat (10 of 1984), Arts. 37, 38, 39 & 40---Penal Code (XLV of 1860), Ss. 302 & 34---Sindh Arms Act (V of 2013), S. 23(1)-A---Qatl-i-amd, common intention---Bail, refusal of---Confession before Police---Scope and effect---Petitioners (two in number) contended that neither they were nominated in the FIR nor any evidence was available against them for committing double murder---Record revealed that no one was nominated in the FIR and initially the Investigating Officer submitted charge sheet under "A" Class, but later on when the petitioners were arrested by the Police in other cases of recovery of weapons under S. 23(1)-A of Sindh Arms Act, 2013, during the investigation of said cases, they confessed their guilt of committing double murder---Although confession before Police, during investigation, had no evidentiary value in the eyes of law under Arts. 38 & 39 of Qanun-e-Shahadat, 1984 but, in the present case, empties which were secured from the place of occurrence and got tested from Forensic Science Laboratory, were found matched with the weapon recovered from the possession of one petitioner---Such corroborative evidence i.e. of Forensic Science Laboratory report, prima facie, connected one petitioner with the offence---Article 40 of Qanun-e-Shahadat, 1984 was the only exception to Arts. 37, 38 & 39, Qanun-e-Shahadat, 1984, which showed as to how much of information received from accused would be proved---Stance of one petitioner was that he committed double murder on the instruction of other petitioner, therefore, at bail stage, when trial had already started and prosecution witnesses were being examined, release of the petitioners would hamper the proceedings of the case---Sufficient evidence was available to show that petitioner had committed non-bailable offences---Material on record revealed that there were reasonable grounds for believing that the petitioners were involved in the present case---Bail was refused to the petitioners, in circumstances.

2017 PCr.LJ 1198 and 2008 SCMR 841 ref.

Intikhab Ahmed for Applicants.

Ms. Ribina Qadir, APG along with Complainant for the State.

2019 P Cr. L J 1249

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

QASIM---Applicant

Versus

GHULAM MUSTAFA alias GULO and 5 others---Respondents

Criminal Revision No. S-282 of 2017, decided on 8th June, 2018.

Evidence---

----Recording of evidence through attorney---Competence---Applicant had sought recording of his evidence through his attorney under pretext that he being old and infirm was unable to understand the proceedings of the court---Applicant had filed his direct complaint before the Trial Court and thereafter the present revision before High Court in person---Such exercise on the part of applicant, prima facie, indicated that he was not an infirm person to understand the court proceedings---No provision existed in general or special law, which could authorize the courts to record the evidence of the witness/complainant through attorney, in criminal cases---Things, which were not permitted by law, could not be permitted to be done under any pretext; if permitted to be done then those would be unlawful---Trial Court, in circumstances, was right to dismiss the application of the applicant for recording the evidence through his attorney---Impugned order did not call for any interference by High Court.

Amanullah Khan v. The State 2011 PCr.LJ 774 and Abdul Hafeez v. Usman Farooqui through his Daughter Sharmila Farooqui and another 2008 PSC (Crl.) 858 distinguished.

Waqar Ahmed Memon for Applicant.

Ms. Safa Hisbani, APG.

Syed Madad Ali Shah as amicus curie.

2019 P Cr. L J 1277

[Sindh]

Before Muhammed Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

MUHAMMAD HANIF and others---Petitioners

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Director-General Sindh---Respondent

Constitutional Petitions Nos. D-1965, D-1963, D-2604 and D-2891 of 2018, decided on 14th May, 2018.

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

----Ss. 9(a)(iv)(xii) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Corruption and corrupt practices---Financial gains, absence of---Petty role---Abettor---Petitioners were arrested by National Accountability Bureau (NAB) as they abetted with their employers in commission of corruption and corrupt practices---Validity---Material was available on record to show that petitioners operated Bank accounts and transferred funds to private Bank account of their employer and to other companies owned by him---Petitioners were minor players in the scam which was orchestrated by their employer who was de jure and later de facto Head of the company in question and main beneficiary of the scam---Petitioners were acting on instructions of the Directors of the company and had made no personal financial gains---Petitioners had already spent approximately 6 months in jail and the same would also tilt balance in favour of grant of bail---Bail was allowed in circumstances.

Chairman NAB v. Fehmida Begum 2015 SCMR 172 ref.

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

----S. 9(a)(iv) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Petitioner was owner of advertising company involved in causing loss to national exchequer by over billing---Validity---Statements under S. 161, Cr.P.C. of witnesses with regard to over billing by petitioner---Material on record showed that petitioner through his illegal conduct and connivance with official accused from Ministry of Interior caused massive loss to Government of Sindh---More than sufficient material on record was available to connect accused to commission of offence for which he had been charged---Bail was declined in circumstances.

Shamraiz Khan v. State 2000 SCMR 157; Nisar Ahmed Dina v. The State 2005 SCMR 1875; Mohammad Rashid Umar v. The State through Chairman NAB SBLR 2012 SC 78; Syed Muzaffar Ali v. Chairman NAB 2016 PCr.LJ 1168 and Ehsanullah Shah v. NAB Supreme Court Case dated 24.04.2018 ref.

The State v. Haji Kabeer Khan PLD 2005 SC 364; Abdul Aziz Memon v. State PLD 2013 SC 594; Fida Hussain Shah v. NAB and others C.P. No. D-1904 of 2017 and Ehsanullah Shah v. NAB Supreme Court case dated 24.04.2018 distinguished.

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

----Ss. 9(a)(iv)(vi) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Medical ground---Petitioner was ex-minister who was involved in causing loss to national exchequer by misusing his official authority---Petitioner had relied upon reports of various Medical Boards to satisfy legal requirements for grant of bail on medical grounds---Validity---Due to past medical history of petitioner his ailment was not feigned---All Medical Boards were agreed that petitioner needed physiotherapy---One of the Medical Boards noted that petitioner required physiotherapy two times a day and hydrotherapy three to four times a day and that hydrotherapy was not available at the hospital---Both the therapies were not available in the jail hospital---Petitioner could be taken under guard from jail hospital to a hospital of his choice in the city where required physiotherapy and hydrotherapy whichever petitioner needed would be provided to him at his own expense and then petitioner could return to jail after each treatment---Bail was declined in circumstances.

Muhammad Arshad v. The State and another 1997 SCMR 1275 and The State v. Haji Kabeer Khan PLD 2005 SC 364 ref.

Kifayatullah v. Federation of Pakistan 2017 PCr.LJ 192; Mohammed Yousafullah Khan v. State PLD 1995 SC 58; Muhammad Saeed Mehdi v. State 2002 SCMR 282; Peer Mukaram ul Haq v. NAB 2006 SCMR 1225; Syed Ali Raza and others v. Federation of Pakistan and another dated 28.12.2017 and Imtiaz Ahmed v. State 2017 SCMR 1194 rel.

S.M. Iqbal for Petitioners (in C.P. No. D-1965 of 2018).

Shahab Sarki for Petitioner (in C.P. No. D-1963 of 2018).

Mahmood Alam Rizvi for Petitioner (in C.P. No. D-2604 of 2018).

Khalid Javed Khan and Muhammad Ahmer for Petitioner (in C.P. No. D-2891 of 2018).

Mohammed Altaf, Special Prosecutor, NAB.

2019 P Cr. L J 1302

[Sindh]

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

TAHIR-UZ-ZAMAN---Appellant

Versus

The STATE/ANF---Respondent

Criminal Appeal No. 172 of 2015, decided on 29th March, 2018.

(a) 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 10-kilograms of charas was recovered from the possession of the accused---Prosecution witnesses were police officials--- Defence had alleged that no private witness was associated at the time of recovery, which was violation of S. 103, Cr.P.C.---Validity---In view of S. 25 of Control of Narcotic Substances Act, 1997, applicability of S. 103, Cr.P.C. had been excluded and non-inclusion of any private witness was not a serious defect to vitiate the conviction---Evidence of Police Officials would be competent and could not be discarded, only for the reason that they were Police Officials---Police Officials had furnished straight-forward and confidence inspiring evidence and there was nothing on record to show that they deposed against the accused maliciously or out of any animus---Appeal was dismissed in circumstances.

Muhammad Sarfraz v. The State 2017 SCMR 1874 and Re-State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

(b) Criminal trial---

----Witness---Police official as witness---Scope---Police employees were the competent witnesses like any other independent witnesses and their testimony could not be discarded merely on the ground that they were Police Officials.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Burden of proof---Scope---Prosecution case was that 10-kilograms of charas was recovered from the possession of accused---Record showed that accused was caught red-handed, narcotics were recovered from his possession and entire recovered charas was sent to the chemical analysis---Report of the Chemical Examiner was positive---Circumstances established that prosecution had discharged its burden successfully which would shift to the accused within meaning of S. 29 of the Act---Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting of huge quantity of charas, but defence had failed in doing so---In the present case, the accused was in jail for the last five years and the family of the accused was in miserable condition---Jail report showed that the conduct of the accused during confinement was satisfactory---Accused also undertook that he would not deal with the narcotics in future---Accused was first offender and had no previous criminal record/history---Accused had claimed himself to be the only male member of the family and had served about five years of imprisonment---Accused, in circumstances was to be given the opportunity to improve himself as a law abiding citizen---In the present case, non-examination of Police Official who allegedly delivered the narcotics substance in question to the office of Chemical Examiner and made no efforts to associate any independent person from the locality as witness in the recovery proceedings, constituted mitigating circumstances---Present case was a fit one for departure from the normal practice of determining quantum of sentence, so it would serve both the purposes of deterrence and reformation, if the sentence awarded to the accused was reduced to "already undergone by him"---Sentence of the accused was altered and reduced to the period which he had already undergone---Appeal was dismissed by maintaining the conviction awarded to the accused, however, the sentence awarded to the accused was altered and reduced to the period he had already undergone.

Shafique Ahmed for Appellant.

Habib Ahmed, Special Prosecutor for the State/ANF.

2019 P Cr. L J 1351

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Irshad Ali Shah, JJ

BANGUL---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-44 of 2014, decided on 4th October, 2018.

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

----Ss. 302(b), 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl­i­amd, rioting, armed with deadly weapon, assault or criminal force to deter public servant from discharge of duty, common object, act of terrorism---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he along with co-accused fired at police personnel with intention to commit their murder, as a result whereof, one police constable died while the other sustained fire shot injuries---Accused and co-accused then made their escape good while taking away with them official rifle of the deceased constable---Police Mobile also sustained damage---Held, as per complainant and witness, they on the night of incident, were conducting patrol, when they reached at an abandoned tool plaza, there on hearing of fire shots they went to police picket and found police constables in injured condition---Complainant stated that distance between the place of incident and abandoned tool plaza was about one kilometer---Witness also stated that he with rest of police personnel reached at the place of incident within 5/10 minutes of hearing fire shots---If the police party consisting of the complainant and his witness reached at place of incident within 5/10 minutes of hearing fire shots and both the police constables were found sustaining injuries before their arrival, then their arrival at the place of incident was at the time when the incident was over, which as per injured constable lasted for 2/3 minutes---Injured constable's statement that he identified the accused and others under the headlight of passerby Pickup and search light that too from the distance of 100 yards appeared to be weak piece of evidence---No specific role of causing fire shot injury to the deceased or injured was attributed to either of the accused---No police mobile, which allegedly sustained damage at the time of incident, was produced at trial by the prosecution---Involvement of accused in commission of the incident on the basis of general allegation appeared to be doubtful---Conviction and sentence recorded against accused was set aside by the High Court and accused was acquitted.

(b) Criminal trial---

----Identification of accused---Torch light---Headlights of passerby vehicle---Identification of accused at night time, under headlights of passerby vehicle and search light that too from the distance of 100 yards, appeared to be weak type of evidence.

(c) Criminal trial---

----Benefit of doubt---Principle---Single infirmity creating reasonable doubt regarding the truth of the charge makes the whole case doubtful.

Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 rel.

Ahsan Ahmed Qureshi for Appellant.

Sharafuddin Kanhar, A.P.G. for the State.

2019 P Cr. L J 1378

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar, J

MUHAMMAD IBRAHIM and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-15 of 2015, decided on 1st September, 2018.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the father of complainant by fire shots---Ocular account of the occurrence was furnished by two witnesses including the complainant---Complainant had deposed that when he reached at the scenario he saw injuries on the right side of deceased father, whereas eye-witness (sons) had deposed that when they reached there and saw injuries on the left side of the deceased (father)---Said witnesses were blood related inter se and were brothers---Both the witnesses had contradicted their version by making injuries on the person of the deceased dubious---Record showed that there was marriage ceremony in the village nearby the place of incident but no independent person had been invited to act as a mashir of wardat---In absence of cogent, reliable and independent evidence, prosecution had totally failed to bring true account of the occurrence---Witnesses were interested witnesses and their testimony could not be relied upon altogether being sons of the deceased---Only source of identification were electronic bulbs which had never been collected by the Investigating Officer because the incident as alleged had happened in odd hours of the night (3.00 a.m.); in absence of such type of evidence, it was not possible to prove the version of the complainant for identification on the source of lightening bulbs---Eye-witness had deposed that deceased was lying in the veranda just adjacent to the wall of the street, but other witness had deposed that he had seen the deceased on the ground in the street backside of the house---Said witnesses had collided from their statements being eye-witnesses and did not offer true account of the scenario as to where the deceased was killed and the dead body was lying either inside the house or at the dwelling street of the village---Investigating Officer had sent the blood-stained clothes as allegedly recovered to the Forensic Science Laboratory but said report could not find place in the record---Alleged country-made pistol and the empty cartridges as recovered had not been sent to the Forensic Science Laboratory for report whether the alleged murder had been caused with the said pistol or otherwise---No report was available on record with regard to the recovery of alleged blood-stained clothes of deceased and the alleged earth therefore, the question would arise as to whether it was of the same group which was available on the clothes of the victim or otherwise---Motive behind the murder as set forth by the prosecution was also dubious in nature because it had never been proved by the independent , corroborative piece of evidence at all---Case property (motorcycle) which was allegedly used in the commission of offence by the accused persons had never been taken into possession by the Investigating Officer nor same had been produced before the court to testify the truth of prosecution story as was envisaged in the FIR, therefore there were series of dents in the prosecution case which needed to be proved---Circumstances established that the case of prosecution suffered from material irregularities and illegalities which created heavy doubts in a prudent mind---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

1971 SCMR 432; 2002 PCr.LJ 1312; PLD 1995 SC 1; 1979 PCr.LJ 460; 2017 SCMR 960; 2018 SCMR 772 and 2017 SCMR 956 ref.

2003 PCr.LJ 1847; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Asif v. The State 2017 SCMR 486 and 2003 SCMR 1466 rel.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Delay in lodging of FIR---Effect--- Record showed that there was inordinate delay in lodgment of FIR---Facts remained that distance between place of incident and the police station as alleged was said to have been of only ten kilometres and there was approximately eight/nine hours, which entailed prosecution case called for due deliberation and consultation.

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

----Ss. 302 & 109---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, abetment---Search to be made in presence of witness---Appreciation of evidence---Record showed that there was clear violation of mandatory provisions of S. 103, Cr.P.C. in the present case because Investigating Officer did not invite independent source from general public out of marriage ceremony as was going on to witness the scenario---Only sons of the deceased acted as eye-witnesses of the incident---Mandatory provisions of S. 103, Cr.P.C. had been violated in the present case.

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

----S. 342 ---Examination of accused by the court---Scope---Necessary questions with regard to the arrest of the accused, collecting blood-stained earth, blood stained clothes and the weapon as alleged was used in the commission of offence which had caused unnatural death of deceased---In the absence of all the incriminating pieces of evidence which if not put to accused at the time of recording of his statement under S. 342, Cr.P.C., the same could not be used against him.

Imtiaz alias Taj v. The State and others 2018 SCMR 344; Qaddan v. The State 2017 SCMR 184; Muhammad Nawaz v. State 2016 SCMR 267 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt would go in favour of the accused person not as a matter of grace and concession but as a matter of right.

1995 SCMR 1345 rel.

Attaullah Abro for Appellant No.1.

Sajjad Ahmed Chandio for Appellant No.2.

Ms. Reshman Oad, APG for the State.

2019 P Cr. L J 1407

[Sindh]

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

Mst. SHARMILA FARUQUI---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary and others---Respondents

Constitutional Petition No. D-4256 of 2016, decided on 28th May, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 25(b)---Ehtesab Ordinance (CXI of 1996), Ss. 9 & 15---Ehtesab Ordinance (XX of 1997), Ss. 9 & 15---General Clauses Act (X of 1897), S. 6---Constitution of Pakistan, Arts. 63(1)(h), 199 & 264---Plea bargain/Voluntary return---Scope---Petitioner entered into plea bargain which was accepted by Trial Court vide order dated 28-04-2001---Petitioner was disqualified from her seat as member of Provincial Assembly on basis of her plea bargain---Validity---Change in sentence and disqualification period were substantive vested rights which petitioner had acquired and could not be taken away to her detriment by repealing law---Provisions of Art. 264 of the Constitution and S. 6 of General Clauses Act, 1897 also supported such proposition---Either provisions of Ehtesab Ordinance, 1996 or provisions of Ehtesab Ordinance, 1997 applied in case of petitioner and there was no concept of plea bargain---Plea bargain and its resultant sentence in judgment were void as under Ehtesab Ordinance, 1996 and Ehtesab Ordinance, 1997; only a voluntary return could have been entered into---High Court in its Constitutional discretionary jurisdiction substituted plea bargain into voluntary return---Petitioner was not disqualified from holding public office at all on her voluntary return according to S. 9 of Ehtesab Ordinance, 1996 and S. 9 of Ehtesab Ordinance, 1997 and same resulted in no conviction recorded against petitioner as she was neither convicted nor public office holder at time of offence---High Court struck down letters issued by authorities as same were void---Constitutional petition was allowed accordingly.

Abdul Qadir Tawakkal v. NAB PLD 2016 Sindh 105; Mirza Ali Khan v. Hidayat Ullah Khan 2014 PCr.LJ 78; Abdul Qadir Tawakkal v. The State PLD 2013 Sindh 481; Maqbool Ahmed and others v. The State 2007 SCMR 116; Jan Parvez v. Haji Fazal Hussain PLD 2007 Pesh. 179; Mansoor Ahmed Qureshi v. The State PLD 2005 Kar. 443; Muhammad Waseem v. Sessions Judge, Islamabad 2004 YLR 2867; Abdul Rehman v. The State 1978 SCMR 292; Nabi Ahmed v. Home Secretary of W.P. PLD 1969 SC 599; Senate v. Shahiq Ahmed Khan 2016 SCMR 460; PoS v. Ghulam Fareed 2015 PLC (C.S.) 151; Rehmatullah v. Saleh Khan 2007 SCMR 729; Evacuee Trust Property v. Mst. Sakina Bibi 2007 SCMR 262; Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Mst. Tehseen v. NAB 2013 PCr.LJ 1137; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; The State v. Maulvi Muhammed Jamil PLD 1965 SC 681; Malik Gul Hasan and Co. v. Allied Bank 1996 SCMR 237; Mst. Sarwar Jan v. Mukhtar Ahmed PLD 2012 SC 217; Muhammed Tariq Badar v. NBP 2013 SCMR 214 and Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262 ref.

Najeeb Jamali for Petitioner.

Salman Talibuddin, Additional Attorney-General for Pakistan on Court's Notice.

Mohammed Altaf, Special Prosecutor, NAB for Respondents.

2019 P Cr. L J 1443

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammed Karim Khan Agha, JJ

FAWAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. D-47, Criminal Revision Application No. D-40 and Criminal Acq. A. No. D-06 of 2016, decided on 11th September, 2018.

(a) Criminal trial---

----Evidence--- Statement of sole witness--- Conviction--- Scope---Conviction could be brought home with the evidence of one eye-witness alone without corroboration, if he was reliable, trustworthy and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-L(2), 337-E(i), 337-E(ii), 147, 148, 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-khafifah, causing damiyah, causing hurt, causing ghayr-jaifah, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused was charged that he along with his co-accused persons assaulted on the complainant party, made firing upon them, due to which two person died and four were injured---Record showed that evidence of the complainant was confidence inspiring corroborated by two other natural eye-witnesses---In the present case, occurrence took place in daylight and there was no case of mistaken identity---No unreasonable delay in filing the FIR---Accused was given a specific role in the FIR---Four pistol empties were found at the scene which according to the Forensic Science Laboratory Report were fired from the pistol recovered from the accused---Statements of the eyewitnesses were reliable and corroborative which found support from the medical report and other evidence on record---Statements of the witnesses under S. 161, Cr.P.C. were taken shortly after the incident and there was no material improvement in the evidence before the Trial Court---Accused and the co-accused attempted to make out a counter case by lodging FIR against the complainant party but the same was disposed of by the Magistrate---No attempts were made to appeal that decision by the accused or any of the co-accused---Accused was guilty of the offence for which he had been charged notwithstanding few minor contradictions in the evidence of the witnesses not fatal to the prosecution case---Appeal was dismissed accordingly.

Bukhti-Harem v. Sabir 2016 PCr.LJ 1408 and Roshan Ali Solanghi v. State 2017 MLD 560 rel.

(c) Criminal trial---

----Witness---Interested witness---Statement of interested witness---Reliance---Scope---If the statement of interested witness was relevant, same would not be discarded.

Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 and Ameer Ali v. State 1999 MLD 758 rel.

(d) Criminal trial---

----Witness---Discrepancies/contradictions in the statement of prosecution witness---Effect---Such discrepancies/contradictions in the statement of the prosecution witness could not be made basis for conviction.

Zakir Khan and others v. The State 1995 SCMR 1793 and Ameer Ali v. State 1999 MLD 758 rel.

(e) Criminal trial---

----Benefit of doubt---Prosecution would have to prove its case against the accused beyond any shadow of doubt---Benefit of any doubt would go to the accused as of right as opposed to concession.

Faheem Ahmed Farooqui v. State 2008 SCMR 1572 and Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 rel.

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

----S. 417---Appeal against acquittal---Scope---Judgment of acquittal was not to be interferred until findings were arbitrary, foolish, artificial, speculative and ridiculous---Scope of interference in appeal against acquittal was narrow and limited because in an acquittal the presumption of innocence would be doubled.

Bashir Ahmed v. Fida Hussain and 3 others 2010 SCMR 495; Noor Mali Khan v. Mir Shah Jehan and another 2005 PCr.LJ 352; Imtiaz Asad v. Zain-ul-Abidin and another 2005 PCr.LJ 393; Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Mulazim Hussain v. The State and another 2010 PCr.LJ 926; Muhammad Tasweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285; Rehmat Shah and 2 others v. Amir Gul and 3 others 1995 SCMR 139; The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Ayaz Ahmed and another v. Dr. Nazir Ahmed and another 2003 PCr.LJ 1935; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1; Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCMR 223; Najaf Saleem v. Lady Dr. Tasneem and others 2004 YLR 407; Agha Wazir Abbas and others v. The State and others 2005 SCMR 1175; Mukhtar Ahmed v. The State 1994 SCMR 2311; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Khan v. Sajjad and 2 others 2004 SCMR 215; Shafique Ahmad v. Muhammad Ramzan and another 1995 SCMR 855; The State v. Abdul Ghaffar 1996 SCMR 678 and Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 rel.

Shamsuddin Khushk for Appellant/Private Respondent Fawad (in Cr. Appeal No. D-47 of 2016 and Cr. Rev. A. No. D-40 of 2016, respectively, as well as private respondents Haji Hussain and others in Cr. Acq. A. No. D-06 of 2016).

Imam Bux Baloch for Applicant/Appellant Naveed Arshad (in Cr. Rev. Appl. No. D-40 of 2016 and Cr. Acq. Appeal No. D-06 of 2016, respectively).

Ms. Romeshan Oad, A.P.G. for the State.

2019 P Cr. L J 1503

[Sindh]

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

ABDUL WAHID and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

C.Ps. Nos. D-6262, D-2717, D-7975, D-8048, D-6301 and D-7441 of 2017, decided on 23rd February, 2018.

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

----Ss. 9(a) & 9(b)---Corruption and corrupt practices---White collar crime---Bail---Principles---Cases of white collar crime are generally of an intricate and complex nature and whole transaction and each component part of scam needs to be viewed in a holistic manner and not in isolation---Offence, in most cases cannot be committed without active involvement of all accused in chain of events which leads to commission of offence---Each of accused needs in some way to be connected with alleged offence through a specific role in cases of bail.

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

----Ss. 9(a)(iv)(vi) & 9(b)---Sales Tax Act (VII of 1990), S. 5---Sales Tax Rules, 2006, R. 29---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Misuse of authority---Petitioners were accused facing charges under National Accountability Ordinance, 1999 for failure to exercise authority and causing loss to national exchequer by fraudulent refund of sales tax---Validity---Principal accused who obtained illegal sales tax refunds based on fake and/or flying invoices provided by other proprietorship co-accused most of who entered into plea bargain and thereby admitted their guilt---Sales Tax scam could not have taken place without their active involvement as aiders and abettors---Official co-accused who wilfully failed to exercise authority in failing to check obvious and glaring suspicious cases of sales tax refund which would have stood out to such experienced and senior officers---Without active involvement and connivance of all accused in reference sales tax scam in question could never have taken place---Banking transactions and nexus between accused persons was also shown through statements under S. 161, Cr.P.C. or bank officials---Accused persons failed to show any mala fide on part of NAB authorities---Sufficient material was available on record to show that petitioners aided and abetted in receiving illegal sales tax refunds which caused a massive loss to the national exchequer---Bail was declined in circumstances.

Mohammed Saeed Mehdi v. State 2002 SCMR 282 and Mohammed Amin Qureshi v. State 2007 PCr.LJ 105 distinguished.

Syed Muzaffar Ali v. Chairman NAB 2015 PCr.LJ 1569; Ali Shan v. Director of Intelligence and Investigation (IRS) Karachi 2016 PTD 2648; Jameel Akhtar and others v. Chairman NAB C.P. D-1770, dated 13.12.2017; The State v. Haji Kabeer Khan PLD 2005 SC 364; Rai Mohammed Khan v. NAB 2017 SCMR 1152; Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427; Mukhtar Ahmad v. The State and others 2016 SCMR 2064 and Khalil Ahmed Soomro and others v. State dated 28.07.2017 ref.

(c) Sales Tax Rules, 2006---

----R. 29---Security and processing of refund claim--- Claim ruled valid by STARR---Effect---Provision of R. 29 of Sales Tax Rules, 2006 does not mean that once a claim is ruled valid by STARR, concerned officials have no authority or power to question STARRs auto generated report and they do not simply act as rubber stamps for such reports.

(d) Mala fide---

----Proof---Mala fide is difficult to prove and often it needs to be inferred from facts and circumstances surrounding a particular case.

Khalil Ahmed Soomro and others v. State dated 28.07.2017 rel.

Khalid Javed Khan for Petitioner (in C.P. No. D-6262 of 2017).

Dr. Muhammad Farogh Naseem for Petitioner (in C.P. No.D-2717 of 2017).

Ms. Fouzia Rasheed for Petitioner (in C.P. No. D-7975 of 2017).

Naveed Baluch for Petitioner (in C.P. No. D-8048 of 2017).

Shahab Sarki for Petitioner (in C.P. No. D-6301 of 2017).

Nisar Ahmed Tarar for Petitioner (in C.P. No. D-7441 of 2017).

Yasir Siddique, Special Prosecutor, NAB for Respondents.

2019 P Cr. L J 1563

[Sindh]

Before Muhammad Saleem Jessar, J

AKHTAR HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 335 and 345 of 2016, decided on 7th May, 2018.

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

----Ss. 420, 109 & 34---Railways Act (IX of 1890), S. 114---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing delivery of property, abetment, common intention, sell or attempt to sell railway ticket unauthorizedly, illegal gratification---Appreciation of evidence--- Delay of about two days in lodging the FIR--- Effect--- Investigating Officer had admitted in his cross-examination that the FIR was lodged after a delay of about three days--- No explanation had been offered by the prosecution for such delay--- Possibility of false implication of the accused person, in circumstances could not be excluded from consideration.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 420, 109 & 34---Railways Act (IX of 1890), S.114---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing delivery of property, abetment, common intention, sell or attempt to sell railway ticket unauthorizedly, illegal gratification---Appreciation of evidence---Benefit of doubt---Accused persons were allegedly involved in black marketing railway tickets---Record showed that prosecution witness/head of raiding party was not officially assigned the duty to conduct surprise visit/raid as no such letter/document had been produced by her during the course of her evidence---Said witness had admitted during the course of evidence that she did not specifically state in her statement recorded under S. 161, Cr.P.C. as to which of the accused had given her the tickets and which one had received the amount from her---Admittedly, she did not give denomination of the notes which she had given to the accused for tickets---Witness had admitted that she did not inform the concerned SHO about her visit/checking about the black marketing of the tickets---Obviously she did not know the names of the accused persons prior to the incident nor in her deposition she had mentioned their names---Prosecution was bound to get the identification parade of the accused persons conducted as required under Art. 22 of the Qanun-e-Shahadat, 1984---First Information Report was lodged by District Coordination Officer but admittedly, his evidence was only hearsay and the entire FIR was based on the statement made by prosecution witness/Head of the reading party---Mashirs of the seizure memo were Police Officials---Said Police Officials were also mashirs of the memo of arrest of accused from railway station---Memo of seizure of tickets was prepared at police station, which was not a proper place---Independent witnesses could be found for acting as mashir because private persons were always available at the railway station---Mashirnama was prepared at police station and no independent witness was associated as mashirs and both the mashirs were Police Officials---Circumstances established that there were defects in the prosecution case, which created doubts in the prosecution story benefit whereof was to be extended to the accused---Appeal was allowed and accused were acquitted from the charge, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

2007 YLR 2179; 1995 SCMR 1345; 2009 YLR 1430; 2003 YLR 1861; 2004 YLR 983; 1992 SCMR 1134; 1992 MLD 432; 2013 YLR 1349; PLD 2006 Pesh. 108; 1999 SCMR 1220; PLD 2008 AJ&K 1; 2008 SCMR 336 and 2006 YLR 622 ref.

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

----Art. 22---Identification parade---Scope---Holding of identification parade would become mandatory if names of culprits are not mentioned in the FIR.

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

----S. 103---Search to be made in presence of witness---Scope---Section 103, Cr.P.C. described that the official making searches, recoveries and arrests were reasonably required to associate private persons particularly in those cases in which presence of private person was admitted so as to lend credence to such actions and to restore public confidence---Such aspect of the matter must not be lost sight of indiscriminately and without exception.

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

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

----Art. 129(g)---Withholding of statement of disinterested witness---Scope---Despite availability of disinterested witnesses, non-examination of such witnesses in the case gave inference that in case such witnesses had been examined they would have deposed against the prosecution as envisaged under Art. 129(g), Qanun-e-Shahadat, 1983.

Bashir Ahmed alias Manu v. The State 1996 SCMR 308; Mohammad Shafi v. Tahirur Rehman 1972 SCMR 144 and 1980 SCMR 708 rel.

Riaz Hussain Soomro for Appellants (in Criminal Appeal No.335 of 2016).

S. Ehsan Raza for Appellants (in Criminal Appeal No. 345 of 2016).

Altaf Hussain Khoso for the Complainant.

Hussain Bux, Special Public Prosecutor for Pakistan Railways.

Muhammad Javaid K. K., Assistant Attorney-General for Pakistan for the State.

2019 P Cr. L J 1598

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

SAIFAL MUGHERI---Applicant

Versus

ABDUL GHANI and 3 others---Respondents

Criminal Misc. Application No. S-137 of 2018, decided on 26th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Ex-officio Justice of Peace, jurisdiction of---Order for demarcation of disputed property---Scope---Ex-Officio Justice of peace directed Mukhtiarkar for demarcation of property---Validity---Ex Officio Justice of Peace by exercising powers under S. 22-A, Cr.P.C. had no jurisdiction to issue direction to revenue authorities to demarcate disputed property---Section 22-A, Cr.P.C. was aimed to provide a watch over acts and omissions of police only---Order passed by Ex-officio Justice of Peace, being without jurisdiction was set aside by the High Court.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 rel.

Muhammad Afzal Jagirani for Applicant.

Rafique Ahmad Abro and Faiz Muhammad Larik for Private Respondents.

Sharafuddin Kanhar, A.P.G. for the State.

2019 P Cr. L J 1610

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Irshad Ali Shah, JJ

JUMA KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-81 of 2016, decided on 15th May, 2018.

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

----Ss. 222 & 225---Framing of charge---Requirements---Error in charge, effect---Scope---Charge would contain such particulars as to time and place of alleged offence and person if any, against whom, or the thing if any, in respect of which it was committed, as were reasonably sufficient to give the accused notice of the matter with which he was charged---Trial was not to be regarded as illegal merely for error in stating the offence or other particulars---When such error or omission claimed to have misled or prejudicial to the accused, then same would be sufficient for amending/altering charge during course of trial or if trial was concluded then it was to be remanded---Every claim of failure of justice because of act of court, if appeared to be carrying weight it would always be advisable to ensure fair trial.

M. Younus Habib v. State PLD 2006 SC 153 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 225 & 537---Possession of narcotics---Case remanded on the basis of defective charge framed against the accused---Validity---Prosecution case was that one kilogram heroin powder and two Bachkas, containing 30 packets of charas, each packet weighed to be one kilogram, total 60-kilograms were recovered from the possession of the accused---Record showed that the charge so framed by Trial Court included S. 8 of Control of Narcotic Substances Act, 1997 but no particulars in that respect were mentioned therein which included the vehicle whereby or through which such attempt of trafficking narcotics was allegedly being made by the accused---Proving a charge of recovery from physical possession was different from that of proving a charge of conscious possession in matter relating to trafficking of narcotic; in later case, the prosecution was to prove conscious knowledge of accused which, however, was to be presumed in former case---Failure of Trial Court in mentioning the weight of the charas lying in the Bachkas and particulars of trafficking of narcotics could not be regarded as mere error or omission as same were not found sufficient to let the accused know the exact nature of accusation against him---Such error or omission apparently had caused serious failure of justice, as such it was not curable under S. 537, Cr.P.C.---Trial Court did not ask any question with regard to vehicle in question and recovery thereof yet had convicted the accused on the case of prosecution that such recovery was effected from vehicle which was in possession of accused---Impugned judgment of the Trial Court being not sustainable, was set aside, in circumstances---Case was remanded to Trial Court for fresh trial after framing fresh charge.

Zahoor Awan and another v. State 1997 SCMR 543; Muhammad Noor and others v. State 2010 SCMR 927 and Mst. Jameela and another v. State PLD 2012 SC 369 rel.

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

----S. 342---Statement of accused recorded under S. 342, Cr.P.C.---Scope---Any piece of evidence not put to accused at the time of recording his statement under S. 342, Cr.P.C. could not be considered against him.

Qaddan and others v. State 2017 SCMR 148 rel.

Miran Bux Shar for Appellant.

Zulfiqar Ali Jatoi, APG for the State.

2019 P Cr. L J 1634

[Sindh]

Before Salahuddin Panhwar, J

MEHMOOD RANGOONWALA and others---Applicants

Versus

FURQAN ALI MUSTAFA and others---Respondents

Criminal Miscellaneous Application No. 31 of 2017, decided on 3rd May, 2018.

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

----Ss. 3 & 7---Criminal Procedure Code (V of 1898), Ss. 265-K & 561-A---Illegal dispossession---Quashing of proceedings---Principle---Accused sought quashing of proceedings after Trial Court had taken cognizance in the matter---Validity---When cognizance was taken by Trial Court proper course for accused persons was to have their early acquittal by resorting to provision of S. 265-K, Cr.P.C. and deviation thereto in name of quashment was legally not permissible---Accused persons were to first approach Trial Court for their early acquittal---Application was dismissed in circumstances.

PLD 2016 SC 55; 2005 PCr.LJ 1524; Director-General Anti-Corruption Estt. v. Muhammad Akram Khan PLD 2013 SC 401 and Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 ref.

(b) Administration of justice---

----Rules of procedure--- Scope--- Procedure always speaks of 'court/forum' and not 'person (name of judge)' and provides remedy of appeal etc., before higher court/forum---Once a court passes an order it becomes functus officio and legally cannot reexamine same except to correct an error floating on face of record within review jurisdiction which in no way can be substitute of 'appeal'---To have a second opinion of findings reached in final order by same court is not permissible which solely lies with higher forum.

Iqbal Pervaiz v. Harsan 2018 SCMR 359 rel.

(c) Administration of justice---

----What one is not entitled directly, cannot obtain indirectly.

Khawaja Shamsul Islam for Applicants.

Muhammad Zubair Qureshi along with Muhammad Rehan Qureshi for Respondent No.1.

Muntazir Mehdi, APG for the State.

2019 P Cr. L J 1669

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

ZULFIQAR ALI---Applicant

Versus

SHAH MOHAMMAD and 2 others---Respondents

Criminal Miscellaneous Application No. S-31 of 2009, decided on 2nd November, 2018.

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

----Ss. 173 & 190---Report of police officer---Cognizance of offence by Magistrate---Duty of investigating officer---Role of investigating officer and that of Magistrate in relation to investigation and its outcome---Distinction---Magistrate may agree or disagree with the report of police officer---Opinion of investigating officer not binding on court---Application of mind before taking cognizance of offence by Magistrate---Scope---Every investigation is conducted with reference to Chapter XIV of Cr.P.C. as well as relevant Police Rules---Vitality of role of Investigating Officer cannot be denied because it is the very first person, who as per law is authorized to dig out the truth without any limitations---Investigating Officer is not bound to base his conclusion on version of informant or defence but on actual facts discovered during the course of investigation---Such conclusion shall be submitted in the shape of prescribed form, as required under S. 173, Cr.P.C.---Police report must include all details as directed in S. 173, Cr.P.C.---Section 173, Cr.P.C. nowhere describes as to how the Magistrate shall deal with such report, it, however, empowers the Magistrate to agree or disagree with the act of investigating officer in releasing an accused during investigation---Word 'may' as used in S. 173, Cr.P.C. vests competence in Magistrate to agree or disagree; this being the reason that an opinion of investigating officer is never binding on the Magistrate---Magistrate who takes cognizance of any offence under S.190, Cr.P.C. is required to apply his mind in order to ascertain as to whether the case is one which he is required to send for trial---Act of taking cognizance has nothing to do with guilt or innocence of the accused, it only shows that the Magistrate has found the case worth trying---Magistrate was not to examine the matter in deep but only prima facie view of the commission of offence---Once Magistrate takes cognizance of the offence exclusively triable by the Court of Session, he has to send the case there.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Muhammad Akbar v. State 1972 SCMR 335 rel.

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

----Ss. 561-A & 173---Penal Code (XLV of 1860), Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon and common object---Police encounter---Report of police officer---Cognizance of offence by Magistrate---Duty of investigating officer---Scope---Petitioner/accused assailed the order of Magistrate whereby he declined to dispose of the case as false or "B" class---Complaint against accused was that he along with co-accused persons killed two persons under the pretext of police encounter---Validity---Two persons lost their lives allegedly at the hands of accused persons, after first sustaining fire shot injuries under the pretext of police encounter---Investigating officer was required to investigate the case even from the angle of defence but his conclusion must always be based on facts discovered during the course of investigation and not merely on the words of informant or defence---Root of defence plea being that deceased persons being desperate and hardened criminals were done to death in police encounter, Magistrate was right in demanding some proof of such plea, which the accused persons failed to produce before him---Witnesses of incident had supported the version of informant, then the investigating officer was not justified to declare the case to be false on the basis of defence plea without collecting any proof thereof---Except the petitioner, none else had assailed the order of Magistrate which impliedly reflected that they had accepted the same---Taking cognizance of offence would not release the prosecution of its duty to prove its case beyond any shadow of doubt or take away the right of accused to enjoy fair trial---Criminal miscellaneous application was dismissed, in circumstances.

Asif Ali Abdul Razzak Soomro for Applicant.

Ali Azhar Tunio for Respondents.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 P Cr. L J 1701

[Sindh (Larkana Bench)]

Before Khadim Hussain Tunio, J

MUJAHID alias GHULAM SHABBIR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-81 of 2011, decided on 4th June, 2018.

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

----S. 540---Summoning of witness---Scope---Court had to exercise all the enabling provisions under the law including S. 540, Cr.P.C. to discover the truth---For the purpose of said provision, court without any formal application from prosecution or accused, could summon any person as witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined.

Pervaiz Ahmed v. Munir Ahmed and another 1998 SCMR 326; State v. Muhammad Yaqoob and others 2001 SCMR 308; Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Ansar Mehmood v. Abdul Khalique 2011 SCMR 713 and Shahbaz Masih v. The State 2007 SCMR 1631 rel.

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

----Ss. 302, 457, 148 & 149---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Summoning of material witness---Scope---Prosecution case was that accused and co-accused persons un-tethered the buffalo of complainant and took away---Complainant with his son, nephew and others chased them, co-accused fired upon the complainant party, which hit the son of complainant and he succumbed to injuries---Accused persons while leaving buffalo, escaped---Record showed that Trial Court had not performed its duty as required under the law for providing opportunity of cross-examination of prosecution witness/nephew of the complainant to the defence---Evidence of said witness, in circumstances, could not be used against accused, as he was not provided the opportunity to cross-examine the said witness---Implicit language of S. 540, Cr.P.C., through which ample powers had been conferred upon the court to examine any witness at any stage of the trial where examination was essential for the just decision of the case, was over-looked---Appeal in circumstances, was partly allowed by setting aside the impugned judgment passed by the Trial Court and case was remanded to the Trial Court for recalling witness/nephew of complainant for his cross-examination by defence and thereafter recording fresh statement of accused under S. 342, Cr.P.C.

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

----S. 342---Recording of statement of accused---Purpose and scope---Purpose of recording statement of accused under S. 342, Cr.P.C. was to inform him of the prosecution case, so that he might be able to explain any circumstance in the evidence against him and also for the purpose of preparing his defence.

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

----S. 342---Examination of accused by the court---Scope---Incriminating piece of evidence which if not put to accused at the time of recording statement under S. 342, Cr.P.C., could not be used against him.

Imtiaz alias Taj v. The State and others 2018 SCMR 344; Qadan v. The State 2017 SCMR 184; Muhammad Nawaz v. The State 2016 SCMR 267; Muhammad Shah v. The State 2010 SCMR 1009; Munawar Hussain alias Asghar Ali v. The State 1991 SCMR 1601; Nadir Khan v. The State 2001 MLD 1873; Ashique Ali v. The State 2005 PCr.LJ 48; Nazir Ahmed and others v. The State PLD 2005 Kar. 18; Muhammad Ayoub v. The State 2006 PCr.LJ 257; Habibullah alias Bhutto and 4 others v. The State PLD 2007 Cr.C. [Karachi] 269 and Habibullah alias Bhutto and 4 others v. The State PLD 2007 Kar. 68 rel.

Sarfraz Khan Jatoi for Appellant.

Raja Imtiaz Ali Solangi, APG for the State.

Inayatullah G. Morio for the Complainant.

2019 P Cr. L J 1736

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Omar Sial, J

NADEEM AHMAD---Appellant

Versus

JAWWAD ZAKI alias ALI and others---Respondents

Criminal Acquittal Appeal No. 461 of 2004, decided on 19th February, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 35 & 397---Offender already sentenced for another offence---Sentence in cases of conviction of several offences in one trial---Scope---Applicant/convict sought two life sentences awarded to him in two different cases by two different courts to run concurrently and not consecutively---Validity---Extenuating circumstances were not pleaded to show that charitable view could not be taken in favour of the applicant and that the sentences should run consecutively---Courts generally took charitable view in the matter of sentences affecting deprivation of life or liberty of a person and exercise enabling power under Ss. 35 & 397, Cr.P.C., respectively to order concurrent running of sentence in one trial and so also consolidate earlier sentence while handing down sentence of imprisonment in subsequent trial--- Criminal miscellaneous application was allowed, in circumstances.

Rahib Ali v. The State 2018 SCMR 418 fol.

Nemo for Appellant.

Salim Salam Ansari and Zeeshan Abdullah for Respondent No.1.

2019 P Cr. L J 1759

[Sindh]

Before Salahuddin Panhwar, J

NAZIM HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1644 of 2018, decided on 12th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Cheque as a security---Effect---Cheque was dishonored---Petitioner contended that the cheque in question was given as security for joint business and not for repayment of any financial obligation---Validity---Besides main ingredients of S. 489-F, P.P.C., issuance of cheque by itself carried an implied impression that the same was towards repayment of loan or fulfilling an obligation unless there was some other agreed condition for encashment of cheque---Cheque, even if unconditional, enjoyed the status of 'negotiable instrument', hence normally the holder thereof felt guarantee of its encashment on presentation---When a cheque (unconditional one) was bounced prima facie presumption would be that the same was for repayment of loan or for fulfillment of some obligation---Petitioner had not denied issuance of the cheque as well as the dishonour, but claimed that the same was issued as 'security' but no such proof in shape of document or fact had been placed on record---Claim of engagement in joint business alone, in absence of some prima facie proof/material , would not be sole ground to get bail for an offence which was aimed to protect ordinary innocent person---Prima facie, the provision of S. 489-F, P.P.C. was attracted to the present case---Petitioner, admittedly, had been convicted in similar case, which suggested that he was habitual in exploiting the implied presumption attached with a cheque---Such fact, prima facie, was in favour of the prosecution---Delay in lodging of the FIR had occurred as the petitioner had engaged complainant in negotiations---Offence not attracting the prohibitory clause of S. 497, Cr.P.C. could not per se made the petitioner entitled to the concession of bail---Grant of bail in such like cases was not a rule of universal application as each case merited decision on the basis of its own facts and circumstances---Deeper appreciation at bail stage was not required and in the light of tentative assessment, petitioner had not made out a case for the concession of bail---Bail was refused to the petitioner, in circumstances.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Shameel Ahmed v. the State 2009 SCMR 174 ref.

2013 SCMR 51 and 2017 PCr.LJ 1305 distinguished.

Ms. Fareeda Mangrio for Applicant/accused.

Muhammad Zaheer for the Complainant along with Complainant.

Siraj Ali Khan Chandio, Additional P.-G. Sindh for the State.

2019 P Cr. L J 1775

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

AIJAZ NAWAZ alias BABA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 204 and Confirmation Case No. 3 of 2015, decided on 25th September, 2018.

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

----Ss. 302(b), 392, 393 & 397---Qatl-i-amd, robbery, attempt to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Day-time occurrence---Natural conduct of eye-witness--- Medical evidence--- Corroboration---Identification parade--- Related witness--- Recovery of weapon of offence---Matching of empty with the weapon---Scope---Prosecution case was that the deceased took his sister in a car to drop her at the bus stop---Two persons appeared on motorcycle, one accused came to the car, drew pistol for snatching the mobile, deceased resisted and accused fired at his forehead---Deceased was sitting on the driving seat and his sister was sitting on the rear seat of the car---Police party, during patrolling, arrived at the spot on hearing fire shot, where police personnel saw accused having pistol in his hand, standing near the driving seat of the car---Accused was arrested and .30 bore pistol was recovered from his possession---Prosecution had succeeded in proving the guilt of the accused beyond reasonable doubt---Medico-legal officer in his certificate had mentioned that the injured was brought in medical centre by the eye-witness---Evidence of eye-witness was reliable for the reasons that she was a student of Medical College, she was present with her brother in the car and she had given the details of incident minutely---Conduct of eye-witness could not be said to be unnatural for the reason that she was a girl and that she was sitting on the rear seat---Evidence of eye-witness was corroborated by the medical evidence and recovery of empty from the place of incident, which matched with the pistol recovered from the possession of accused---Accused was identified by the eye-witness in identification parade though holding of identification parade was not mandatory and was merely a corroborative piece of evidence---Accused was identified by the eye-witness even in Trial Court---Evidence of eye-witness was confidence inspiring, constant on all material particulars and there was nothing in evidence to suggest that she had deposed falsely---Eye-witness had no motive to falsely implicate the accused in the murder of her brother---Evidence of eye-witness could not be rejected on the sole ground of her relationship with the deceased---Trial Court had rightly awarded death sentence to the accused---Accused had caused firearm injury to the deceased at head, the vital part of body, then non-repetition of said act was hardly of any consequence in the matter of determining the quantum of punishment---Appeal was dismissed and reference for confirmation of death sentence was answered in affirmative.

Nasrullah alias Nasro v. The State 2017 SCMR 724; Muhammad Sadiq v. The State 2017 SCMR 144; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Mansha v. The State 2018 SCMR 772; G. M. Niaz v. The State 2018 SCMR 506; Sajjad Bhatti and others v. The State 2017 PCr.LJ 114; Arif Hussain and another v. The State 1983 SCMR 428; Akhtar Hussain alias Kaka v. The State 2009 PCr.LJ 444; Pathan v. The State 2015 SCMR 315; Muhammad Ehsan v. The State 2006 SCMR 1857; Ijaz Ahmad v. The State 2009 SCMR 99; Ashfaq Ahmed v. The State 2007 SCMR 641; Abdur Rehman v. The State 1998 SCMR 1778; Muhammad Ilyas and others v. The State 2002 SCMR 350; Zaigham-ur-Rehman alias Zaigi v. The State PLD 2007 SC 104; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 and Salam alias Toor Jan v. The State 2013 PCr.LJ 1461 ref.

Raqib Khan v. The State 2000 SCMR 163; Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Dadullah and another v. The State 2015 SCMR 856 and Noor Muhammad v. State 1999 SCMR 2722 rel.

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

----S. 302---Qatl-i-amd---Appreciation of accused---Non-performance of post-mortem examination---Effect---Factum of qatl-i-amd of deceased was independently established through strong and convincing evidence by the doctors---Nature of injury and use of firearm was mentioned in medical certificates---Mere fact that post-mortem examination was not conducted had no material effect or legal consequences for the reason that deceased had sustained firearm injury at the head.

Abdur Rehman v. The State 1998 SCMR 1778 rel.

(c) Criminal trial---

----Witness---Conduct of witness---Human behaviour varies from person to person; different people behave and react differently in different situations---Human behaviour depends upon facts of each case; as to how a person reacts and behaves in a particular situation can never be predicted---Every person who witnesses a serious crime, reacts in his own way; some are stunned, some become speechless, some would see the incident whereas some would flee from the spot---No fixed rules of natural conduct are available.

(d) Criminal trial---

----Witness---Eye-witness---Memory of the incident by the eye-witness---Scope---By and large, people cannot accurately recall the sequences of events which take place in a short span---People can only remember the main purport of the incident---To expect from a witness to be a human tape-recorder or a video camera is unrealistic; it is not expected from the witness to have a photographic memory and to recall the minute details of the incident---Witness cannot narrate the incident on the mathematical niceties in criminal cases.

Muhammad Ramzan for Appellant.

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

2019 P Cr. L J 1

[Lahore]

Before Ali Baqar Najafi and Tariq Iftikhar Ahmad, JJ

SHAUKAT ALI---Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Director General and others---Respondents

W.P. No. 189554 of 2018, decided on 27th June, 2018.

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

----S. 33-C & Preamble---Preventive measures--- Object, scope and purpose--- Accountability laws neither monitor functionality of departments nor they even supervise or control decisions of government and its agencies---Certain essential precautionary measures have been introduced through these laws which may facilitate functionaries to play role of whistleblower to rule out or at least minimize possibility of corruption and corrupt practices---Scope of preventive measures for controlling and eradication of corruption and corrupt practices has been hallmark under different laws prevalent in many countries.

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

----S. 33-C--- Constitution of Pakistan, Art. 199--- Constitutional petition---Prevention of corruption and corrupt practices---Measures---Petitioners were developers of private housing schemes and they were aggrieved of notices issued by National Accountability Bureau to Development Authority seeking details from them about their housing schemes---Validity---National Accountability Bureau was conducting inquiries in respect of 20 housing schemes on allegation of corruption and corrupt practices and misuse of authority---Tendency had grown of un-witnessed alluring public at large, seizing opportunities to exploit weaknesses of poor and ignorant hence, there was need of preventive/precautionary steps---National Accountability Bureau did not proceed directly against the petitioners---Consequent to certain information to National Accountability Bureau by petitioners, National Accountability Bureau could or could not directly proceed against petitioners---High Court declined to restrain National Accountability Bureau from collecting information which could be relevant to allegation of corruption and corrupt practices---Constitutional petition was dismissed in circumstances.

Mrs. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Lahore Development Authority through D.G. and others v. Mrs. Imrana Tiwana and others 2015 SCMR 1739 and Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594 ref.

Ch. Mushtaq Ahmed Khan and Morris Nadeem for Petitioner.

Zahid Sultan Khan Minhas, Special Prosecutor for NAB.

2019 P Cr. L J 34

[Lahore]

Before Ali Baqar Najafi and Masud Abid Naqvi, JJ

Dr. MUJAHID KAMRAN---Petitioner

versus

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

W.Ps. Nos. 245783, 245044, 245062 and 245063 of 2018, decided on 7th November, 2018.

(a) University of the Punjab Act (IX of 1973)---

----Ss. 25 & 26---Vice-Chancellor and Syndicate---Powers---Vice-Chancellor of the University, under S. 25 of University of the Punjab Act, 1973, is Chairman of the Syndicate beside other members---Syndicate, under S. 26 of University of the Punjab Act, 1973, is Chief Executive body of the University and can take effective measures to raise standard of teaching, research and publications and other academic pursuits---Syndicate can exercise general supervision over the affairs and managements of property of the University---Provision of S. 26(2) of University of the Punjab Act, 1973, authorizes the Syndicate to appoint University teachers and other officers on recommendations of Selection Board for teaching and other posts in initial pay of Rs.450 per mensem or above---Syndicate can delegate any of its powers under S. 26(2)(cc) of University of the Punjab Act, 1973, to an Authority or a Committee or sub-committee.

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

----S. 9(a)(vi)--- Misuse of authority--- Illegal appointments---Scope---Appointments without following procedure i.e. advertisements is not enough to probe allegations of misuse of authority---Such appointments may be a procedural irregularity, when not accompanied by mens rea---Procedural irregularity without mens rea does not prima facie constitute an offence.

The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 distinguished.

Mirza Luqman Masud and others v. Chairman NAB and others 2017 CMR 838 and Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166 rel.

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

----S. 9(a)(vi) & (b)---Criminal Procedure Code (V of 1898), S.497(2)---University of the Punjab Act (IX of 1973), Ss. 25 & 26---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Illegal appointments--- Mens rea, absence of---Effect---Case of further inquiry---Petitioners were Vice-Chancellor and other senior officials of the University of the Punjab, who were arrested for appointments made on contract basis during their tenure---Authorities alleged that petitioners misused their authority as appointments were made without approval of Selection Board---Validity---Vice-Chancellor was Chairman of the sub-committee along with the others Registrar/Secretary and exercised their authority delegated to it by the Syndicate in a bona fide manner for the purposes of appointment of teaching staff on contractual basis without any mens rea on their part--- Petitioners did not misuse their authority to make illegal gains for themselves or for someone else by depriving any aggrieved person of his valuable vested right---Contract employment of many of the employees was regularized/extended and the employees had not given any opportunity of complaint to anyone against them with reference to performance of their job---Allegations of appointments on contractual basis by the committee while exercising authority of the Syndicate, without approval of Selection Board, made against petitioner being its members required further probe as contemplated under S. 497(2), Cr.P.C. and further detention of petitioners would serve no useful purpose to prosecution---Bail was allowed in circumstances.

The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 distinguished.

Mirza Luqman Masud and others v. Chairman NAB and others 2017 SCMR 838 and Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166 rel.

Qazi Misbah-ul-Hassan for Petitioner (in W.P. No. 245783 of 2018).

Muhammad Asad Manzoor Butt and Hafiz Muhammad Nauman Zafar for Petitioner (in W.Ps. Nos. 245044, 245062 and 245063 of 2018).

Yasir Siddique Mughal, Special Prosecutor for NAB with Rauf Alam, Deputy Assistant Director.

2019 P Cr. L J 74

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD JAHANGIR---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No. 1666 of 2015, heard on 22nd March, 2018.

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

----Ss. 302, 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused entered into the house of brother of complainant and assaulted on his brother and Bhabi (sister-in-law), due to which, brother of complainant died while his Bhabi (sister-in-law) sustained injuries---Motive behind the occurrence as stated by the wife of deceased that few days prior to the occurrence the accused committed theft of motorcycle of a friend of deceased and the same was recovered from his possession---Deceased complained to the father of accused who admonished him---Accused became revengeful and attacked on the victims---Ocular account of the occurrence had been furnished by the complainant/real brother of deceased and his widow---Complainant had testified that he was employed with WAPDA and was posted at place "H" and he used to come to see the deceased and stayed there---On the fateful night he was present in the house of deceased---Complainant, in cross-examination, stated that he was on leave that day but did not produce any evidence in support of his statement but had not explained any specific purpose for his visit to the house of his deceased brother---Even if ignored the fact that the prosecution had not established that complainant was on leave from his job, he could justifiably be regarded as a chance witness and his testimony must be carefully scrutinized before it was relied upon---Testimony of the complainant revealed a lot of holes which bereaved it of its credibility---Complainant had claimed that he was present at the time when the occurrence took place, but he neither called the police nor rescue team for help; in the normal course complainant should have asked for it immediately---Record showed that incident happened at 1.00 a.m., but the complainant an injured lady reached the hospital at 2.00/2.15 a.m. and there was no explanation for said delay---Testimony of complainant was in conflict with the other prosecution evidence with regard to the question as to how the injured were taken to the hospital---Complainant had stated in the cross-examination that a patrolling police party immediately came to the spot on hearing hue and cry and they shifted them to the hospital on their own vehicle---No reliable evidence was available to show that complainant even accompanied the injured to the hospital---Record transpired that post-mortem of the deceased was conducted 13 to 24 hours after his death---Prosecution had not explained the said delay---Such unexplained delay generally was suggestive of a possibility that time had been consumed by the police in procuring and planting eyewitnesses and cooking up a story for the prosecution---Complainant had made dishonest improvements in his previous statement with which he was duly confronted, as such he was not trustworthy witness---Injured lady was prime witness in the present case and her presence at the spot at the relevant time was natural as she was the wife of the deceased and it was reaffirmed by the fact that she was injured in the occurrence---Statement of injured under S. 161, Cr.P.C. was recorded six days after the incident for which the prosecution had not furnished any explanation---Prosecution deliberately withheld Medical Officer who allegedly examined injured lady, resultantly, accused was acquitted by the Trial Court under S. 324, P.P.C. for attempting to commit qatl-i-amd of injured, which caused dent in the prosecution case---Circumstances established that prosecution case was riddled with doubts and it could not prove the charge against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 rel.

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

----S. I61---Delay in recording the statement of witnesses---Effect---Statement of a witness was recorded with delay without any cogent reason, his credibility became doubtful.

Amir Zaman v. Mahboob and others 1985 SCMR 685; Ibrar Hussain and others v. The State 2007 SCMR 605; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Naeem Inayat v. The State 2010 SCMR 1054; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence might have confirmed the eyewitness account with regard to the seat and nature of injuries, the kind of weapon used in the occurrence, but could not identify the accused. [p. 85] I

Altaf Hussain v. Fakkhar Hussain and another 2008 SCMR 1103; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Muhammad Shafi and others v. The State and others 2016 SCMR 1605 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

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

----Ss. 302, 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Weapon of offence (churri) was allegedly recovered from the accused for corroboration of the ocular account but the same lacked credibility because recovery was made in violation of S. 103, Cr.P.C.---Prosecution had failed to prove its safe custody---Chemical Examiner Report showed that churri was delivered at his office by Police Official but said Official did not depose about any such delivery---Recovery of the said weapon was of no avail to the prosecution in circumstances.

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

----Ss. 302, 324 & 452---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Motive, proof of---Complainant had stated about motive behind the occurrence that injured lady told him that a few days prior to the occurrence the accused committed theft of motorcycle of a friend of deceased and the same was recovered from his possession---Deceased complained to the father of accused who reprimanded him, whereafter the accused killed him in revenge---Complainant reiterated the motive part of the FIR when he testified as witness---Complainant, though, did not have any direct knowledge about it and injured lady did not depose anything about it when she got recorded her statement as witness---Investigating Officer also did not collect any evidence about the same---Motive was not proved, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond reasonable doubt and if it failed to do so, he would be entitled to benefit of doubt.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(g) Criminal trial---

----Benefit of doubt--- Principle--- Single circumstance creating a reasonable doubt in a prudent mind about the guilt of the accused, would entitle him to acquittal.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Kh. Muhammad Ajmal for Appellant.

Sultan Mehmood Khan, APG for the State.

Zulfiqar Ali Dhuddi for the Complainant.

2019 P Cr. L J 107

[Lahore (Rawalpindi Bench)]

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

NAZAKAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 4-J and Murder Reference No. 1 of 2015, heard on 22nd February, 2018.

(a) Criminal trial---

----Circumstantial evidence---Scope---Prosecution was duty bound to link each circumstance to the other in a manner that it should form a continuous chain of circumstances firmly connecting the accused with the alleged offence---If one ingredient of chain was missing then whole evidence would be discarded and prosecution case would fall on ground.

Ibrahim and others v. The State 2009 SCMR 407 and Muhammad Hussain v. The State 2011 SCMR 1127 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Withholding of evidence---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that before Maghrib prayer four persons made firing upon two brothers of complainant, due to which, they died---Motive behind the occurrence as disclosed in the crime report was that the accused had suspicion that deceased had illicit relation with his sister---Record showed that name of the accused reflected nowhere in the crime report---Nominated accused were declared innocent and the accused was nominated by the complainant later---Brothers of complainant were shot at had not been seen by the complainant and he was attracted at the place of occurrence after hearing report of firing---Complainant had not seen the accused firing at the deceased---Prosecution case against the present accused was entirely structured upon the evidence of last seen adduced by paternal uncle of deceased persons---Said witness had stated that prior to half an hour of Maghrib prayer, he along with his friend had seen the accused, who was briskly going towards jungle carrying a .30 bore pistol in his right hand---Said witness, after completion of autopsy proceedings, informed the complainant next day that he had seen the accused while going towards jungle while lashing 30-bore pistol---Statement of said witness was recorded by the Investigating Officer next day of occurrence and no reason was cited by him for withholding the most vital information---Said witness had stated that they heard Maghrib Azan at the house of their uncle, where dead bodies were laid, which showed that they reached the place of occurrence even before the arrival of police and if so, why the present accused was not nominated in the crime report---Silence of said witness created serious doubt about his veracity---Evidence of last seen was outside the ambit of proximity in terms of time and space---Said witness could not mention the exact time when he had seen the accused going towards jungle having .30 bore pistol in his right hand---According to said witness, his friend was also accompanying him, who was absolutely an independent witness but the prosecution had not examined the said witness while treating him as unnecessary witness---Adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could fairly be drawn that had the witness been examined, his evidence would have been unfavourable to the prosecution---Numerous improvements were found in the statement of said witness---Self-negating and contradictory statement of said witness reflected that the witness was not truthful and he had deposed an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un-witnessed occurrence against the present accused---Strong evidence was required to connect the accused with the commission of offence in case of circumstantial evidence---None of the pieces of evidence, either individually or collectively, was compatible with the guilt of the accused thus, it would not be safe to maintain the findings of conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentences awarded by the Trial Court in circumstances.

Muhammad Jamil v. Muhammad Akram and another 2009 SCMR 120 and Khursheed v. The State PLD 1996 SC 305 ref.

Jaffar Ali v. The State 1998 SCMR 2669 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Record showed that two crime empties were secured by Investigating Officer from the place of occurrence on 17-10-2013 and the accused was arrested on 1-11-2013---Pistol was recovered on 10-11-2013 at the instance of the accused and empties were sent to Forensic Science Laboratory on the day of arrest of accused---Recovery of pistol and positive report of Forensic Science Laboratory was inconsequential to the prosecution case because if the crime empty was sent to Forensic Science Laboratory after the arrest of accused or together with the crime weapon, the positive result of said laboratory would lose its evidentiary value.

Ali Sher and others v. The State 2008 SCMR 707 and Israr Ali v. The State 2007 SCMR 525 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, not proved---Record showed that complainant had disclosed that the accused had suspicion that deceased had illicit relation with his sister but the alleged grudge was only an oral assertion---Admittedly, no previous enmity existed between the parties---No other evidence was produced by the prosecution and as to what actually happened just before the occurrence was shrouded in mystery---Circumstances established that prosecution had failed to prove the motive part of the occurrence.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to seat of injuries, its duration, nature of injuries and kind of weapon used for causing such injuries, but it could not connect the accused with the commission of crime, until there was some other evidence---If other evidence was not considered reliable, medical evidence would be of no avail to the prosecution.

Ghulam Mustafa and another v. State 2009 SCMR 916 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If the prosecution case was pregnant with major discrepancies, it would become incumbent upon the court to extend the benefit of doubt in favour of the accused.

Arif Hussain and another v. The State 1983 SCMR 428 rel.

Faisal Khan Niazi for Appellant.

Naveed Ahmed Warraich, DDPP for the State.

Muhammad Aslam Sheikh for the Complainant.

2019 P Cr. L J 141

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch. JJ

MUDASSAR alias YASRI---Appellant

versus

The STATE and others---Respondents

Criminal Appeal No. 1878 of 2015, Criminal Revision No. 489 of 2017 and Murder Reference No. 371 of 2015, decided on 17th May, 2018.

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

----Ss. 302(b), 376 & 449---Qatl-i-amd, rape, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Benefit of doubt---Motive not disclosed at the time of registration of FIR which had created doubt in the prosecution story---Evidence of 'Wajtakar', which was a weak type of evidence, could be procured at any time during the investigation, when direct evidence was not available with the prosecution---Extra-judicial confession, in the present case, was the result of concoction---Even otherwise, evidence of extra judicial confession could be taken as corroborative piece of evidence if the same rang true and found support from other evidence of unimpeachable character, which was missing in the case---Recovery of mobile phone and 2-ear rings from the cattle shed, was not believable---Complainant had submitted in the court that he had no objection on acceptance of appeal of accused and his acquittal---Serious doubts existed regarding participation of accused in the occurrence---Appeal was accepted, conviction and sentences of accused awarded by the Trial Court through impugned judgment, were set aside and he was acquitted of the charge.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 and Nasir Javaid and another v. The State 2016 SCMR 1144 ref.

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

----S. 302(b)--- Medical evidence--- Scope--- Medical evidence could confirm the ocular evidence with regard to the seat of injury and nature of injury and kind of weapon used in the occurrence, but would not connect accused with the commission of crime.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

(c) Criminal trial---

----Benefit of doubt---If there was a circumstance which would create reasonable doubt in prudent mind about the guilt of accused, he would be entitled for the same, not as a matter of grace and concession, but as of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Barrister Danyal Ijaz Chaddhar and Nazir Ahmad Javed for Appellant.

Pervaiz Iqbal Gondal for the Complainant.

Munir Ahmad Sayyal, DPG for the State.

2019 P Cr. L J 172

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

ALLAH DITTA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 359 and Murder Reference No. 51 of 2013, heard on 10th April, 2018.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention--- Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with his co-accused persons made firing upon the complainant party, due to which brother of complainant died while nephew of complainant sustained injury on his right shin---Motive behind the occurrence was that deceased had to take seven mounds of wheat from accused and nephew of the complainant had restrained him from installing the electric pole---Prosecution's mainstay was on the testimony of complainant, brother of the deceased, injured witness, nephew of the complainant and cousin of the said witnesses---Said witnesses were closely related to each other as well as to the deceased---Record showed that the eyewitness had made consistent statement to that of injured but complainant had not supported injured in his examination-in-chief as he had not uttered a word with regard to the injury sustained by the injured---Said factor showed that complainant had not seen the occurrence with his own eyes and he had been planted and manoeuvred to depose against the accused---Complainant had not only failed to mention the injury sustained by injured but also mentioned that the accused was carrying a pistol 12-bore at that time instead of pistol .30-bore as narrated by the other claimed eye-witnesses---Complainant had claimed that they had shifted the dead body of the deceased within ten minutes from the place of occurrence to their house whereas Investigating Officer had stated that he visited the place of occurrence on the same day, examined the dead body there, prepared his injury statement and inquest report and escorted the dead body to the mortuary through Police Official---Scaled site-plan and the inquest report showed contradiction with regard to the shifting of the dead body from the place of occurrence wherein it was mentioned that the dead body of the deceased was lying at the place of occurrence---Complainant had claimed that the occurrence had taken place inside the house of the accused and the dead body of the deceased was lying in front of a room in the courtyard of the house of the accused and injured was lying on the ground in such condition near the dead body of the deceased---Injured witness had stated in cross-examination that the altercation had taken place out of the house of the accused and he had received injury at his right shin out of the accused's house---Deceased had received fire arm injury out of the house of the accused, who was standing in his field, where the electricity pole was going to be installed---Said material contradiction as to the place of occurrence had made the proceedings of investigation, worthless---Said circumstances depicted that either both the said witnesses were not present at the time and place of occurrence or they had made statements in order to suppress some real facts from the court---Injured had injuries on his person to establish his presence at the venue of occurrence yet it could not be lost sight of the fact that Medical Officer had not observed any corresponding hole on Dhoti of the said injured witness and that his statement could not be corroborated from the testimony of the eyewitness/complainant with regard to the injury sustained by him during the occurrence---Record transpired that testimony of the alleged eyewitness had been found to be not worth reliance as he was a chance witness being resident of some other place, and no reason whatsoever could be brought on record to establish his presence at the venue of the occurrence at the relevant time---Medical Officer had conducted autopsy on the dead body of deceased with the delay of about 16-hours---Delay of 16-hours in conducting the post-mortem examination of the deceased indicated the real possibility that the time had been consumed by the police as well as the complainant for cooking up a false story and to manage the eye witnesses---Circumstances established that no evidence was found to connect the accused with the murder of deceased---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 rel.

(b) Criminal trial---

----Witness whose presence at the crime scene was doubtful---Reliance---Scope---If a single doubt appeared as to the presence of the claimed eye witness at the crime scene, it would be sufficient to discard his/her testimony as a whole.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention---Appreciation of evidence---Motive, not proved---Effect---Prosecution had alleged the motive in the crime report---Dispute of accused with the deceased on account of giving seven mounds of wheat as labour to the deceased and with the injured over the installation of electricity pole---Prosecution was under legal obligation to prove the motive through independent piece of oral as well as documentary evidence other than the words of mouth of the claimed eye-witnesses, who had appeared before Trial Court to state the mode and manner of the occurrence---None of the claimed eyewitnesses had seen accused and deceased while quarrelling over the dispute of demanding wheat by the deceased---If the accused had a dispute on the installation of electric pole in the land of injured, there was no occasion to exchange hot words to enter into the house of accused and then to take the extreme step of killing the deceased on the basis of nothing---Motive was not proved in circumstances.

(d) Criminal trial---

----Motive---Scope---If a specific motive was put by the prosecution, the same had to be proved through independent source of evidence---In case of failure to prove, the prosecution had to face the consequences.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention--- Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that Investigating Officer had secured two crime empties of pistol 30-bore at the time of his first visit of the place of occurrence---Said Investigating Officer had not mentioned the date of arrest of the accused; however, during investigation, accused led to the recovery of a pistol with two live bullets---Empty bullets were sent to the office of Ballistic Expert after 27-days of the occurrence and after 14-days of the recovery of weapon of offence from the accused, whereas weapon of offence was deposited in the office of Ballistic Expert after more than one month of its alleged recovery---Report of Forensic Science Laboratory had been received with positive result---First Information Report had mentioned that the accused was armed with .12 bore pistol, but at the very moment when the Investigating Officer had secured empties of .30 bore pistol from the place of occurrence, the complainant had made supplementary statement mentioning the weapon of offence as .30 bore pistol with the accused just to bring the same in line with the prosecution case---Dispatch of crime empties to the office of Forensic Science Laboratory after arrest of accused with the delay of 27-days of its securing, rendered the same to be legally unacceptable and thus, the recovery of weapon of offence from the accused was inconsequential.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to stand on its own legs to prove the charge against the accused and the benefit of doubt, even slightest, should favour the accused. [p. 185] K

Muhammad Akram v. The State 2009 SCMR 230 rel.

Mudassar Altaf Qureshi for Appellant.

Miss Asma Khan for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

2019 P Cr. L J 219

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD YASEEN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GOJRA

and 3 others---Respondents

W.P. No. 206739 of 2018, decided on 25th June, 2018.

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

----S. 176---Disinterment of dead body, application for---Scope--- Petitioner contended that Appellate Court had wrongly allowed disinterment of dead body of the deceased (son of the respondent/complainant) as post-mortem of the deceased had already been conducted revealing his cause of death as firearm injury in the head---Complainant contended that he apprehended that his son did not commit suicide rather Police had murdered him and they (police officials) in connivance with Medical Officer got done post mortem of the deceased---Post-mortem of the deceased had revealed firearm injury on his head which also contained blackening, meaning thereby the same had been caused from a very close range---Cause of death i.e. infliction of firearm injury on the head of deceased stood established by the post-mortem report itself, and even by the respective stance of the parties---No justifiable reason existed to have recourse to disinter the dead body by invoking the process provided in S. 176, Cr.P.C. because determination of facts as to how and in what manner the incident took place was clearly a circumstance beyond the mandate of S. 176, Cr.P.C.---Court, while dealing with such application, would see that only in cases of real genuineness and as a last resort such an order would be issued---Application filed merely on the basis of apprehensions was not to be acceded to---Impugned order passed by Appellate Court not only suffered from illegality but did not stand the test of morality also---High Court set aside impugned order passed by the Appellate Court---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Arts. 199 & 4---Criminal Procedure Code (V of 1898), S. 439---Constitutional petition against revisional order---Maintainability---Contention was that revisional order could not be challenged in constitutional jurisdiction---Validity---Held, where an order passed by revisional court did not violate any law and no illegality was found to have been committed therein, the same could not be disturbed in constitutional jurisdiction---When, however, an order suffered from patent error or grave illegality in applying the correct law and the order passed by the revisional court did not qualify the test of Art. 4 of the Constitution, the same could be rectified in exercise of constitutional jurisdiction.

Badaruddin v. Mehr. Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Adnan Afzal for Petitioner.

Muhammad Hammad Khan Rai, Assistant Advocate-General for the State.

Muzammil Rasheed Bhatti for Respondent No.4.

2019 P Cr. L J 256

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural and Muhammad Tariq Abbasi, JJ

MUHAMMAD ISMAIL---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, D.G. KHAN and 2 others---Respondents

Writ Petition No. 3626 of 2017, decided on 12th March, 2018.

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

----Ss. 7 & 23---Penal Code (XLV of 1860), Ss. 302, 201, 311, 336, 336-A, 336-B, 109 & 34---Qatl-i-amd, disappearance of evidence, thug, hurt, hurt by corrosive substance, abetment, common intention, terrorism---Transfer of case to court of ordinary jurisdiction---Scope---Jurisdiction of Anti-Terrorism Court---Scope---First Information Report was lodged as dead body of a woman was recovered having been strangulated her forehead, left cheek and feet were cut by some animal and acid was also used in the occurrence---Accused contended that Anti-Terrorism Court had wrongly dismissed his application to transfer the case to court of ordinary criminal jurisdiction as from the attending facts and circumstances, applicability of S. 336-B, P.P.C., was not found---Validity---Sections 336-A & 336-B, P.P.C. stipulated hurt to a human being by using corrosive substances, including acid---Complainant and other prosecution witness stated that after strangulation dead body of deceased was thrown in a sugarcane crop and to conceal its identity acid was poured on the face of the deadbody---Section 332, P.P.C. suggested that if hurt was caused to a living human being, only then it would be considered as an injury and punishable accordingly---If a corrosive substance was thrown on a dead body the same did not amount to hurt---In the present case, acid had been thrown, on the dead body, so that its identity could be concealed, therefore, at the most S. 201, P.P.C. could be applicable and not S. 336, P.P.C.---Present case did not come within jurisdiction of Anti-Terrorism Court---High Court set aside impugned order passed by the Anti-Terrorism Court and directed to transfer the case from Anti-Terrorism Court to the court of criminal jurisdiction---Constitutional petition was allowed accordingly.

Muhammad Ashraf Qureshi for Petitioner.

Mehr Nazar Abbas Chawan, Assistant Attorney-General with Abid, S.I. for the State.

Abdul Rehman Tariq Khand for Respondent No.2.

2019 P Cr. L J 270

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

ABDUL GHAFOOR alias ALLAH DITTA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 670, 662 and Murder Reference No. 95 of 2012, decided on 26th April, 2018.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Time between death of deceased and post-mortem was 6 to 12 hours---Complainant had massively improved upon his statement which was initially made before the Police---Prosecution relied upon judicial confession by both accused persons before the complainant and other prosecution witness, but Investigating Officer as court witness denied appearance of said witnesses before him to share details of any confessional statement---No reason existed as to why the Investigating Officer would withhold that information, while he had taken all other investigative steps to the detriment of accused persons---Private complaint appeared to be instituted to space evidence, earlier omitted---Statements of two prosecution witnesses, were found far being plausible---Contention that the deceased was done to death in house of the complainant under mysterious circumstances, though not in accord with the crime scene shown in site plan as well as in the face of cross-examination, merited serious consideration in view of negative seminal report---Homicidal nature of death, though could not be doubted, however, that by itself could not establish guilt of accused persons, particularly after failure of prosecution to establish the story of extra judicial confession---Accused persons could not be convicted merely on account of their relationship with the deceased or upon their failure to satisfactorily explain the circumstances leading towards death of deceased without potential risk of error---Whole case being fraught with doubts, it would be unsafe to maintain the conviction of accused persons---Extending benefit of doubt to accused persons their appeals were allowed and they were acquitted from the charge, in circumstances.

Nazeer Ahmad v. The State 2018 SCMR 787 rel.

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

----S. 164---Evidence of extra judicial confession---Scope---Evidence of extra judicial confession was a weak piece of evidence and could not be made basis for conviction unless found to have come from a most unimpeachable source, that too, with strong corroboration.

Tahir Mehmood for Appellants.

Mehr Habib Ullah Girwah for the Complainant.

Ch. Muhammad Iftikhar-ul-Haq, Additional Prosecutor-General for the State.

2019 P Cr. L J 295

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

MUHAMMAD RAFAQAT YOUSAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 240126-B of 2018, decided on 4th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonouring of cheque due to lack of funds---Ad interim pre-arrest bail, confirmation of---Partial payment already made---Mala fides of complainant---Out of the total disputed amount of Rs.37,00,000/-, which was the subject matter of the cheque in issue, the complainant had already received Rs.10,00,000/- which meant that the financial obligation of the accused was not Rs.37,00,000---Even then the complainant presented the cheque issued by the accused amounting to Rs.37,00,000/- for encashment to the Bank---After the admitted partial payment out of the total amount, mentioned in the subject cheque, the complainant should not have presented the same for encashment but he did so which prima facie, reflected mala fide on his part---In case the accused failed to pay the remaining amount to the complainant, he had the remedy to file a suit against the accused for recovery of that amount---Accused had already joined the investigation while the offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Sending the accused behind bars was neither likely to serve any useful purpose nor seemed justified---Ad interim pre-arrest bail already granted to the accused was confirmed accordingly.

Ajab Khan for Petitioner.

Irfan Zia, Deputy Prosecutor-General along with Saeed, ASI for Respondents.

2019 P Cr. L J 302

[Lahore]

Before Mirza Viqas Rauf and Muhammad Tariq Abbasi, JJ

Mian MUHAMMAD SHARIF---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

W.P. No. 217088 of 2018, decided on 13th December, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv) & (b)---Constitution of Pakistan, Arts. 10-A & 199---Constitutional petition---Bail, grant of---Fair trial---Due process of law---Delay in conclusion of trial---Petitioner was arrested by NAB authorities on 24.12.2016 and since then charge had not been framed against the petitioner by the Trial Court---Plea raised by petitioner was that such incarceration of petitioner would tantamount to punishing him before his guilt was proved---Validity---Held, it was an inalienable right of every accused to have expeditious and fair trial, which right was guaranteed under Art. 10-A of the Constitution---Prosecution failed to give any definite time for conclusion of trial and accused could not be left at the mercy of authorities to rot in jail for an indefinite period---Inordinate delay in conclusion of trial of detained prisoner could not be lightly ignored provided it was not caused due to any act or omission of accused---Delay in prosecution of accused amounted to abuse of process of law and was a valid ground for grant of bail to accused---Delay in prosecution as ground for bail was to be weighed and judged on its merits---Bail was allowed in circumstances.

Muhammad Nadeem Anwar and another v National Accountability Bureau and others PLD 2008 SC 645; Anwarul Haq Qureshi v. National Accountability Bureau and another 2008 SCMR 1135; Muhammad Jameel Rahi v. D.G. NAB and others 2012 SCMR 552; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092 and Tariq Mehmood v. National Accountability Bureau through Chairman Islamabad and others C.P. No.476 of 2018 rel.

Qazi Misbah-ul-Hassan for Petitioner.

2019 P Cr. L J 316

[Lahore]

Before Sardar Ahmed Naeem, J

SAQIB IQBAL and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 226268-B of 2018, decided on 18th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged---Ad interim bail, confirmation of---Mala fide, proof of---Scope---Unexplained delay of seven years in registration of FIR---Pendency of civil suit between the parties---Effect---Record revealed that FIR was registered with unexplained delay of about seven years---Complainant was not a party to the disputed agreement to sell---During investigation, executants of said agreement had not joined the investigation---Civil suit between the parties was pending adjudication prior to the registration of FIR---Subject matter of the said suit was the property mentioned in the FIR---Petitioners had joined the investigation and as the agreement in question was appended with the said suit, thus no recovery was to be effected from them---Investigating Officer had not supported the version of the complainant and there was no evidence against the petitioners except the statement of the complainant---Accused, at bail stage, could not prove the element of mala fide through solid material, therefore, the same was to be deduced and inferred from the facts and circumstances of the case---Where events or hints to such effect were available, the same would validly constitute the element of mala fide---Ad interim pre-arrest bail already granted to the petitioners was confirmed , in circumstances.

Khalil Ahmed Soomro v. The State PLD 2017 SC 730 ref.

Muhammad Ajmal Adil for Petitioner.

Azhar Hussain Malik, Additional Prosecutor-General along with Maqsood Hussain, S.-I. for the State.

2019 P Cr. L J 325

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

PEERU RAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 275 and Murder Reference No. 29 of 2014/BWP, heard on 13th September, 2018.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Accused was charged for committing murder of his wife/sister of the complainant---Record showed that the scene of crime was situated at a distance of 9-kilometers from police station and the complaint was forwarded to police station through Police Qaumi Razakar (PQR) who was not produced during trial---Inference, in circumstances, could be drawn that had PQR been produced as witness, he would not have supported the case of prosecution---Eye-witnesses had stated consistently that the information of occurrence was conveyed to police by brother-in-law of the complainant in the police station and thereafter police arrived at the crime scene---Investigating Officer had stated during cross-examination regarding the receipt of information of occurrence through a telephonic call of moharrar---Said situation suggested that claim of prosecution regarding prompt registration of FIR was not free from doubts---Record transpired that eyewitnesses were residents of a vicinity situated 30/32 kilometres away from the place of incident---Eye-witnesses, in circumstances, should not have been present at the crime scene as per their daily routine---Two days before the occurrence, marriage ceremony of brother of complainant took place, hence, it appeared more improbable for them to be present at the place of occurrence---Said aspect would go long way in making all the said eye-witnesses as chance witnesses---Eye-witnesses, in order to justify their presence at the crime scene had come forward with the stance that in the earlier hours of the day, complainant received a telephonic message from the deceased, whereby she complained about a maltreatment in the form of physical torture and apprehension of her death from the hands of accused---Call was received by complainant at about 8.00 a.m., whereas the witnesses made it to the crime spot at about 9.00 a.m. on their bicycles---Keeping in view the intervening distance between the place of abode of witnesses and the house of deceased as 30/32 kilometres, it did not appear to be even a remotely possible to make it and that too on the saddles of cycles---Witnesses, on their arrival at the spot, the witnesses had seen the accused while inflicting blows to deceased through the handle of hatchets---Deceased after receiving successive blows fell on the ground and immediately thereafter was strangulated to death through a rope by accused---Evinced from the ocular account that the aggression of accused lasted about one/two minutes, however, none of the three eye-witnesses made any serious effort to intervene for saving deceased from the deadly clutches of accused---Said conduct demonstrated by the witnesses in no manner befitted with natural human response to such occurrence, where a lady having same blood line was being done to death---Such response suggested nothing but the absence of eye-witnesses from the place of occurrence---Witnesses, in order to justify their non-interference, had stated to opt silence due to fear of hatchet in the hand of accused---Such explanation besides being lame in nature was preposterous as well, since it was improbable for accused to hold two corners of rope and hatchet at the same time and then to strangulate the deceased---Claimed entry of witnesses into the house at the thick of moments and peek of aggression had given rise to many questions adverse to the case of prosecution---Accused at the relevant time, was all set to slay deceased, if it was so, the question would arise as to what precluded the accused to achieve his designs through the hatchet blows which was in his hand---Though the intervening duration between death and post-mortem was 5½ hours, however, it was described by Medical Officer in post-mortem report as within 24-hours which did not coincide with prosecution case---Said anomaly when seen in the context of the defence plea of accused, according to which deceased died suicidal death, had given rise to a convincing doubt---During post-mortem examination, a ligature mark was noted by the Medical Officer around the neck of deceased; however, a close look of the medical evidence unveiled that the ligature mark was absent at the back of neck and hyoid bone of the deceased was found not fractured---Record transpired that 6/7 injuries other than the ligature mark on the neck were observed by the Medical Officer during autopsy on the body of the deceased---Said injuries were in the nature of bruises, abrasion and a scratch---Probably, the deceased was maltreated and beaten by the accused which led to the frustration and decision to commit suicide---Prosecution, in circumstances, could not seek refuge under the shelter of medical evidence as it run contrary to it---Facts and record of the case showed that there were two possible interpretations, either the death of deceased was suicidal or homicidal and one which favours the accused was to be followed---Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

Irshad Ahmed v. The State 2011 SCMR 1190; Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 and Muhammad Shah and another v. State and others 2010 SCMR 1009 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Chance witness---Testimony of chance witness---Reliance---Scope---Testimony of chance witness was not to be brushed aside straightway and instead it could be given legal credence if such person reasonably explained and justified his presence at the crime scene during occurrence---Likewise, the testimony of chance witness, as abundant caution, was to be scrutinized on the touchstone of corroboration.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

Ch. Imran Ashraf for Appellant.

Saleem Gill for the Complainant.

Asghar Ali Gill, Deputy Prosecutor-General along with Khalid, ASI for the State.

2019 P Cr. L J 353

[Lahore (Multan Bench)]

Before Farooq Haider, J

MUHAMMAD ASHRAF---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 471 of 2012, heard on 20th November, 2018.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Rule of consistency---Benefit of doubt---Accused was convicted by Trial Court for commission of qatl-i-amd and he was sentenced to imprisonment for life by Trial Court---Validity---Prosecution could not bring any material on record to distinguish role of convicted accused from one who was acquitted---Prosecution also could not prove that injury attributed to accused was caused by him---Case of convicted accused was at par with one that was acquitted---First Information Report was got recorded with delay and case against accused was not beyond shadow of doubt---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Irfan Ali v. The State 2015 SCMR 840 and Muhammad Ali v. The State 2015 SCMR 137 ref.

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

----S. 342---Statement under S. 342, Cr.P.C.---Scope---Prosecution has to prove its own case beyond shadow of doubt and when prosecution has otherwise failed to prove its case then accused cannot be convicted on basis of any plea advanced by accused in his statement under S. 342, Cr.P.C.---Accused deserves acquittal in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Mudassar Altaf Qureshi for Appellant along with Appellant in person.

Syed Nadeem Haider Rizvi, DPG for the State.

Nishat Ahmad Siddiqui for the Complainant.

2019 P Cr. L J 412

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun and Farooq Haider, JJ

MUHAMMAD AMEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 23 of 2018, decided on 26th November, 2018.

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

----Ss. 9(c) & 48---Qanun-e-Shahadat (10 of 1984), Art. 114---Criminal Procedure Code (V of 1898), S. 510--- Recovery of narcotics---Appreciation of evidence--- Estoppel against law--- Principle---Applicability---Forensic Science Agency, report of---Scope---Accused was apprehended for possessing heroin and Charas, whereafter report was obtained from Forensic Science Agency---Copy of such report was produced in court after objection was withdrawn by accused and petitioner was convicted and sentenced by Trial Court---Validity---Withdrawal of objection by accused did not amount to waiving of right of questioning admissibility of report during evidence---No concept of waiver or estoppel existed against question of law and especially in criminal law---Such objection could be agitated as and when occasion arose---Court was to decide the case strictly in accordance with law as question of life and liberty of accused was to be decided---Prosecution had failed to bring on record original report of Forensic Science Agency through which prosecution had to confirm that alleged recovered material from appellant was contraband for seeking conviction and sentence of accused---Such report of Forensic Science Agency was neither a legal document nor it carried any sanction of law and same could not be read against accused as a piece of evidence---Trial Court was not justified in recording conviction against accused on basis of such inadmissible document---High Court set aside conviction and sentence awarded to accused awarded by Trial Court and acquitted accused---Appeal was allowed in circumstances.

Ghayour Abbas v. The State 2018 YLR 2494 rel.

Fayyaz Ahmad Khan Lakhwera for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor-General with Farhat Waseem, ASI for Respondent.

2019 P Cr. L J 436

[Lahore]

Before Muhammad Waheed Khan, J

Mst. IRSHAD BIBI---Petitioner

Versus

DISTRICT POLICE OFFICER and others---Respondents

Criminal Miscellaneous No. 248023-H of 2018, decided on 12th November, 2018.

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

----S. 491---Habeas corpus petition/application before the High Court---Recovery of minor---Matter of custody of minor children could be brought before a High Court under S. 491, Cr.P.C. only if the child was of very tender age; if he had quite recently been snatched away from lawful custody and, if there was a real urgency in the matter---High Court may, however, only regulate the interim custody of the children leaving the matter of final custody to be determined by the Guardian Court.

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

----S. 491---Habeas corpus petition---Recovery of minor aged less than two weeks---Minor snatched by the father---Minor was a suckling baby aged about 13 days---Mother had been deprived from the custody of minor few days ago, and there was a real urgency in the matter---High Court while exercising powers under S. 491, Cr.P.C. directed that custody of minor was to be handed over to the mother immediately, however the father would be at liberty to approach the Guardian Court for regularization of custody of minor---Petition was allowed accordingly.

2019 P Cr. L J 484

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

JAVED IQBAL and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 501-J and Murder Reference No. 346 of 2014, heard on 26th November, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Multiple murders---Nighttime occurrence---Description of weapons---Benefit of doubt---Trial Court convicted accused persons for committing murder of five persons with firearms and sentenced them to death---Validity---Ocular account compounded by inherent flaws, positive forensic report regarding two accused persons could not advance case of prosecution to their extent---Sifting of grain from chaff could not rescue charge as there was chaff all around---Meticulous identification by female illiterate witnesses from rural neighborhood about types and kinds of weapons used and that too in an extreme crisis situation engulfed by dark was a story that was hard to buy---Massive loss of life notwithstanding case of prosecution on the whole was not free from doubts deducible from stated positions---Conviction could not be maintained in view of position of prosecution and large number of accused arrayed therein, without incurring potential risk of error---High Court extended benefit of doubt to all the accused persons and acquitted them of the charge---Appeal was allowed in circumstances.

Barrister Aitzaz Hussain, Khuram Latif Khosa, Abid Saqi, Badar uz Zaman Chatta and Shahid Azar Khan for Appellants.

Asghar Ali Gill for the Complainant.

Muhammad Nawaz Shahid, Deputy Prosecutor-General Punjab for the State.

2019 P Cr. L J 516

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed and Anwaarul Haq Pannan, JJ

MUHAMMAD IDREES---Petitioner

Versus

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

Writ Petition No. 15442 of 2018, decided on 19th November, 2018.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 302 & 324---"Act of terrorism"---Scope---Private motive---Effect---Accused was aggrieved of dismissal of his application whereby Trial Court declined to delete S. 7 of Anti-Terrorism Act, 1997---Validity---In order to attract provision of Anti-Terrorism Act, 1997, act complained of must have a serious nexus with provision of S. 6 of Anti-Terrorism Act, 1997---To exercise jurisdiction under Anti-Terrorism Act, 1997 'design' or 'purpose' behind action coupled with mens rea to constitute offence of terrorism was sine qua non---Trial Court had not taken it into consideration while deciding application of accused---Nothing was available on record to show that life and liberty of large number of persons in village was put in danger because of firing of accused party---In absence of solid and admissible evidence mere conjectures and surmises how strong might be, could not substitute reality---Occurrence had taken place as a result of private motive between parties---High Court declared addition of S. 7 of Anti-Terrorism Act, 1997 in FIR and submission of challan before Anti-Terrorism Court to be illegal and without lawful authority---High Court directed Special Judge Anti-Terrorism Court to transfer record of case to court of ordinary jurisdiction for further proceedings in accordance with law--- Constitutional petition was allowed in circumstances.

Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178; Kashif Ali v. The Judge Anti-Terrorism Court No. II, Lahore PLD 2016 SC 951 and Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

Waris Ali and 5 others v. The State 2017 SCMR 1572; Nazim Khan v. Special Judge, Anti-Terrorism Court 2002 MLD 1433 and Muhammad Riaz v. Mian Khadim Hussain, Additional Sessions Judge, Mianwali and 11 others 2002 YLR 203 rel.

Sardar Mehboob for Petitioner.

Iftikhar-ul-Haq, Additional Prosecutor-General along with Zakir Inspector for Respondents.

2019 P Cr. L J 532

[Lahore]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

Mst. IQBAL BANO---Petitioner

Versus

HOME DEPARTMENT, GOVERNMENT OF PUNJAB through Secretary and 2 others---Respondents

Writ Petition No. 33857 of 2016, decided on 6th December, 2018.

Penal Code (XLV of 1860)---

----Ss. 53 & 302(b)---Punishment---"Death Row phenomena"---Scope and impact---Psychosis---Son of petitioner was convicted for qatl-i-amd and was sentenced to death, which remained maintained up to the Supreme Court---Petitioner sought setting aside of sentence of her son on the ground that he was suffering from psychosis and incarceration since year 2001 had inflicted grievously incisive trauma, irreversible in nature and the same had given magnitude of ordeal already suffered---Validity---Amongst corporal sentences, penalty of death had its own unique punitive impact upon its recipient, unlike incarceration it terminated immediately upon its execution---Death was the ultimate instrument of fear, impending consequences were ante-mortem in nature, not only for the condemned prisoner but upon its surroundings as well---Such consequences were viewed retributive as well as deterrent, described as 'Death Row phenomena'---Knowledge of befalling death could inexorably ignite mental/emotional trauma and was a journey into the unknown with obsessions shuttling between hope and despair---Tales of chivalry notwithstanding a person bracing the gallows could not remain oblivious to the uncertainty lurking behind his fate---Such agonizing experience would inevitably take its toll even on the most strong nerves and psychosis was an obvious outcome; the longer the period the more profound it was---Held, once a case was finally decided by the Supreme Court, it would be far less than expedient for High Court to reopen the issue so as to take a different view on any ground whatsoever---Constitutional petition was dismissed in circumstances.

Safia Bano v. Home Department, Government of Punjab and others PLD 2017 SC 18 rel.

Barrister Sarah Belal assisted by Barrister Raja Hashim Javed, Ms. Zainab Mehboob and Muhammad Iftikhar Ahmad Zubair for Petitioner.

2019 P Cr. L J 544

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

ZARAB KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 257/J of 2017, heard on 10th January, 2019.

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

----Ss. 9(b) & 9(c)---Recovery of narcotic substances---Appreciation of evidence---Accused was arrested for possessing pieces of charas weighing six kilograms and slabs of opium weighing one kilogram---One hundred grams of charas and Twenty grams from opium were sent to Chemical Examiner---Trial Court convicted accused and sentenced him to imprisonment for nine years with fine---Validity---Neither weight of each slab of opium was given nor total number of slabs had been mentioned---Fact that as to from how many slabs how much opium was separated for purpose of preparing sample was not clarified---Held, that only that quantity of charas and opium could be taken into consideration for purpose of conviction and sentence which had been received through sealed parcel of Forensic Science Laboratory which, in the present case, was 104.72 grams charas and 19.11 grams opium---High Court altered the conviction of accused under S. 9(b) of Control of Narcotic Substances Act, 1997 for quantity of charas as sent to the Chemical Examiner and convicted the accused under S. 9(a) of the Act for the opium and reduced the sentence to one year and three months---Appeal was dismissed accordingly.

Ameer Zeb v. The State PLD 2012 SC 380; Khuda Bakhsh v. The State 2015 SCMR 735; Ikramullah and others v. the State 2015 SCMR 1002 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Nasir Khan Afridi for Appellant.

Haroon Rasheed, Deputy District Public Prosecutor for the State.

2019 P Cr. L J 553

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

AMAN ULLAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 97 of 2018, heard on 1st November, 2018.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention---Appreciation of evidence---Record showed that the incident took place on 21.6.2016 at 9.45 p.m. and the same was reported to the police by complainant by way of recording his statement under S. 154, Cr.P.C. at 11.15 p.m., in consequence of which crime report was lodged at 11.35 p.m.---Initially the crime report was lodged against two unknown accused and the present accused was not named therein in any capacity---Subsequently, accused was substituted in place of one of the two accused persons, who was driving motorbike and except the role of driving motorbike, no other attribution was specified against the accused in the crime report---No descriptive features of the person who was driving motorcycle were mentioned in the crime report---Crime report, in such circumstances, did not render any sort of corroboration to the case of the prosecution against the accused.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that two persons, on motorcycle without number plate, intercepted complainant party and the pillion rider, with his pistol .30-bore shot at companion of the complainant, landed on his left shoulder and shin of his left leg, whereas one of the bullets also hit the lady on her right foot---Both the injured persons were shifted to the hospital where one of the injured succumbed to the injuries---Ocular account was furnished by the complainant and injured lady, which showed that both the said witnesses departed from their earlier version twisting the facts while appearing in the witness box before trial court---Earlier statements of the complainant as well as injured witness recorded under Ss. 154 & 161, Cr.P.C. were absolutely silent about reason behind the occurrence---In order to naturalize the story incorporated in crime report and also to point out some mense rea of the incident, both the said witnesses improved their version while recording examination-in-chief, wherein they had stated that the intention of the accused persons was to commit robbery and in said process deceased offered resistance upon which co-accused of the accused made fire shots resulting in the death of the deceased and caused injury to witness---Complainant, in his examination-in-chief, further introduced another fact that the accused directed his co-accused to open fire at the deceased as well as the injured, but no such fact was mentioned in crime report nor injured had stated anything in that regard in her previous statement---Said improvements made by the witnesses of ocular account casted serious doubt in their veracity---Incident had taken place at about 9.45 p.m., neither any source of light had been mentioned by the witnesses nor any features of the accused had been given in their first statement---Identification of the accused before the Trial Court by complainant and injured witness was not much helpful to the prosecution in circumstances---Manner in which the identification proceedings were conducted raised serious doubt on the credibility of the process---Prosecution witness had not only changed the time of incident from 9.45 p.m. to 9.15 p.m. but also introduced a new fact that co-accused, besides causing firearm injuries to the deceased and the injured also made fire shot at the complainant, who survived---Said deviating circumstances were fatal to the prosecution case and could not be ignored merely because of the heinousness of offence---Accused was completely stranger to the prosecution witnesses, therefore, in the absence of description in the contents of crime report, the credibility of the identification parade would lose its sanctity at that score only---No injury on the person of the deceased as well as that of the injured was attributed to the accused and in such circumstances, medical evidence had nothing to do as far as the case against the accused was concerned---Record transpired that during the course of investigation conducted by the Investigating Officer, the name of main culprit was surfaced on the record but the Investigating Officer did not make any effort to arrest the main culprit of the offence and even did not try to initiate proceedings under Ss. 87/88, Cr.P.C. against him---Investigating Officer did not bring the complainant and the injured before the sketch artist for preparation of sketch of accused/driver of the motorbike---Investigating Officer did not make any effort to recover the motorcycle used during the incident---Defence had placed on the file a copy of FIR, registered under S. 161, P.P.C. read with S. 5(2) of the Prevention of Corruption Act, 1947, according to which the Investigating Officer was caught red-handed while receiving an amount of Rs. 50,000/- from the complainant of that case by threatening him to involve his innocent relatives in criminal cases---Such a nefarious attitude and character of the Investigating Officer also casted serious doubt upon the veracity of the material collected by him in order to establish the involvement of the accused in the present case---Circumstances established that prosecution case to the extent of accused was of doubtful nature and his conviction and sentence could not be maintained on the basis of such type of shaky and unreliable evidence---Appeal was allowed and accused was acquitted, in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Art. 22--- Identification parade--- Scope--- Identification of an accused person without reference to the role allegedly played by him during the occurrence was shorn of any evidentiary value.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Muhammad Fayyaz v. The State 2012 SCMR 522 and Azhar Mehmood and others v. The State 2017 SCMR 135 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the offence.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----Ss. 302(b), 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing hashimah, common intention---Appreciation of evidence---Weapon of offence recovered from accused---Reliance---Record showed that .30-bore pistol had been recovered from the accused, whereas according to the crime report as well as the identification report, it was not the case of the prosecution that accused was equipped with any weapon at the time of incident or he had used the same during the incident---Although, injured witness and complainant, in their examination-in-chief, improved their version and stated that accused was also equipped with pistol, but that improved version of the eye-witnesses was not permissible under the law---Investigating Officer during his cross-examination had admitted that the place of alleged recovery was open place, owned by the government, and was not in exclusive possession of the accused, which also made the recovery doubtful---Report of Forensic Science Agency pertained only to the mechanical operating condition of pistol, which did not match with any of the five .30-bore calibre cartridge cases, collected by the Investigating Officer during spot inspection---Recovery of pistol and the report of Forensic Science Agency did not provide any help to the case of the prosecution so as to connect the accused with the commission of offence.

(f) Criminal trial---

----Benefit of doubt---Principle---If there was an element of doubt as to the guilt of the accused, the benefit of that doubt would be extended to him.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ghafran Khursheed Imtiazi for Appellant.

Mirza Muhammad Usman, D.P.G. for the State.

Nemo for the Complainant.

2019 P Cr. L J 569

[Lahore]

Before Miss Aalia Neelum, J

ARJAMAND SHAHZADI and another---Petitioners

Versus

The STATE and another---Respondents

Bail Application No. 235135-B of 2018, decided on 17th December, 2018.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 109, 365 & 201---Qatl-i-amd, abetment, kidnapping or abducting with intent secretly and wrongfully to confine person, causing disappearance of evidence of offence---Ad interim pre-arrest bail, confirmation of---Alleged witnesses of the conspiracy to murder recorded their statements under S. 161, Cr.P.C. implicating the accused and co-accused, however contents of said statements did not reveal as to when the witnesses informed the complainant about the conspiracy---Moreover the prosecution story did not sound to reason since the accused and co-accused could not be expected to hatch a conspiracy to murder in a manner that it should be known to the relatives or near ones of the complainant or the deceased---Question of involvement of accused and co-accused needed further probe within the meaning of S. 497(2), Cr.P.C.---Ad interim pre-arrest bail granted to accused and co-accused was confirmed accordingly.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302, 109, 365 & 201---Qatl-i-amd, abetment, kidnapping or abducting with intent secretly and wrongfully to confine person, causing disappearance of evidence of offence---Ad interim pre-arrest bail, confirmation of---Closed-Circuit Television (CCTV) evidence, reliance upon---CCTV footage could not be taken to be the gospel truth unless and until the veracity of such footage was proved during the course of trial by producing evidence, both with regard to the contents as well as timing of death of deceased---Complainant and his witnesses had to prove by preponderance of probabilities that the recording presented by them was of the CCTV footage and it had not been tampered with---Furthermore two different forensic reports of the CCTV footage created doubts about the recording presented before the court---Without permitting parties to adduce evidence with regard to the correctness of the CCTV footage, same could not be relied upon, more so when the same was brought on record by a person who was not neutral---Question of involvement of accused and co-accused needed further probe within the meaning of S. 497(2), Cr.P.C.---Ad interim pre-arrest bail granted to accused and co-accused was confirmed accordingly.

Aazar Latif Khan and Farooq Ali Bajwa for Petitioners.

Ms. Umm-ul-Baneen, DPG with Riaz D.S.P., Akram, S.I. and Abdul Qayyum, A.S.I. for the State.

2019 P Cr. L J 582

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

Engineer Raja QAMAR UL ISLAM and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Writ Petitions Nos. 244287, 242354, 259386, 256528, 257523 of 2018, 3394 and 185 of 2019, decided on 30th January, 2019.

(a) Punjab Procurement Rules, 2014---

----R. 57(2) & (3)---Procurement---Negotiation of bids---Scope---Under R. 57(2) & (3) of Punjab Procurement Rules, 2014, a bid can be negotiated immediately after opening of bids, in case of goods of high technical nature (machinery, its parts, industrial equipment, plants etc.).

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

----S. 9(a)(iv)(vi) & (b)---Punjab Procurement Rules, 2014, R. 57(2) & (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Procedural irregularities---Negotiation of bids---Petitioners were accused of approving bid for installing water filtration plants allegedly in violation of Punjab Procurement Rules, 2014, by negotiating bids---Validity---No illegality was committed by petitioners in making post-bid changes and negotiations with supplier company, whereby bid price was substantially reduced from Rs.1.14 billion to Rs.989 million---Petitioners only recommended for placing of contract in favour of the supplier company on the basis of negotiated bid for approval of the same by Board of Directors of the Punjab Saaf Pani Company---Final approval was made by all fourteen directors/ex-officio directors of the Company present in the meeting---Prima facie, it was established that NAB authorities mala fidely proceeded against only two directors of the Company---No allegation of receiving any kickback, commission or illegal gratification against petitioners, their relatives or friends was on record---Only allegation against petitioners was that they misused their authority in violation of laws and rules on the subject punishable under S. 9(a)(vi) of National Accountability Ordinance, 1999, but there was no illegality or violation of rule/law on the subject---Even if there was any procedural irregularity in exercise of authority by petitioners, even the same did not amount to misuse of authority so as to constitute an offence under S. 9(a)(vi) of National Accountability Ordinance, 1999---Truth of allegation levelled against petitioners that they violated certain rules whereby they succeeded to get the bid price of filtration plants reduced from supplier after opening of the bid and as such, they committed an offence punishable under S. 9(a)(vi) of National Accountability Ordinance, 1999, could be determined at trial after recording of evidence---Bail was allowed in circumstances.

Writ Petition No. 226785 of 2018, Order dated 19.07.2018; Writ Petition No. 212612 of 2018, Order dated 19.07.2018; Muhammad Daud and another v. The State and another 2008 SCMR 173; Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Fazil Khaliq alias Hafiz v. The State through Advocate-General, N.W.F.P. Peshawar and another 1996 SCMR 364 and Anwar Saifullah Khan v. The State and 4 others PLD 2000 Lah. 564 ref.

The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 and Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 rel.

Shazib Masud for Petitioner (in W.P. No. 244287 of 2018).

Mian Ali Ashfaq for Petitioner (in W.P. No. 242354 of 2018).

Asad Manzoor Butt and Hafiz Muhammad Numan Zafar for Petitioners (in W.Ps. Nos. 259386, 256528 of 2018 and 3394 of 2019).

Shahid Nazir Jarra for Petitioner (in W.P. No. 257523 of 2018).

Muhammad Zain Qazi for Petitioner (in W.P. No. 185 of 2019).

Syed Faisal Raza Bukhari, Special Prosecutor for NAB along with Syed Saqib Haider, Assistant Director, NAB.

2019 P Cr. L J 609

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

MUHAMMAD FAROOQ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 668 and Criminal Revision No. 207 of 2018, decided on 7th November, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that the accused persons while sharing their common intention, committed the murder of the sister of the complainant under the pretext of honour---Admittedly, the occurrence was un-witnessed and the one of circumstantial evidence---Evidence of wajtakkar was furnished by a witness, stating that he had seen the accused along with his son/co-accused on 10.11.2017 at about 4.05 p.m. while riding motorcycle and by that time they were in perplex condition---Company of father and the son on a motorcycle was not unusual or unnatural---Prosecution's case was that accused had informed the complainant and other relatives of the deceased about the incident---Version of said witness remained uncorroborated and unsubstantiated, therefore, was not of much help to the prosecution---Record transpired that co-accused persons were burdened with identical allegations as compared to those levelled against the accused---Co-accused was exonerated from the allegations by the complainant during the course of investigation in the light of her statement---Other co-accused was acquitted of the charge after full-fledged trial---Neither complainant nor the State opted to prefer appeal against the acquittal of said accused and judgment of his acquittal had attained finality---When the evidence to the extent of acquittal of co-accused had already been disbelieved by Trial Court, same could not be believed against the present accused until and unless the same was supported by any independent corroborative piece of evidence, which was very much lacking in the present case---Circumstances established that prosecution had failed to bring home the guilt of the accused beyond any reasonable shadow of doubt---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Iftikhar Hussain v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6 and Ghulam Mustafa and another v. State 2009 SCMR 916 rel.

(b) Criminal trial---

----Circumstantial evidence---Scope---Circumstances tampered with or conjured up, could not be accepted without careful and critical analysis---If the circumstances were well authenticated, such circumstantial evidence could form basis of conviction.

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

----Ss. 302(b)& 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, not proved---Effect---Motive of the occurrence was stated to be illicit relation of deceased lady with someone and accused persons committed her murder under the pretext of honour---Record showed that husband, son and brother of the deceased had suspicion that the deceased had illicit relations with some person and she used to make calls to her on cell phone, but it was only oral assertion of the complainant---Neither alleged paramour of deceased was interrogated nor any objectionable telephonic data was collected during the entire investigation nor was brought before the court at the time of trial---Motive set up by the prosecution could not be taken as cause for such incident, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused were charged for the murder of sister of complainant---Record showed that prosecution witnesses had stated that he was present at bus stop, accused came to him and disclosed that he had committed a grave mistake and murdered his wife by strangulation for honour---Accused further stated that he was raged due to which he committed the murder and as the police was in his search, therefore, some arrangement be made to patch up the matter between him and the legal heirs of the deceased---Place chosen by the accused for such purpose was not at all suitable---Approach of the accused to the said witness, as claimed by him, at bus stop appeared to be unnatural and even uncomfortable to common experience and observation---Circumstances suggested that there was every chance for his arrest---Record was silent as to why he would go to such a busy place like bus stop and expose himself, where there was every chance of his arrest---Record did not show as to why the accused had made extra-judicial confession before such a person who having some authority was expected to do him more harm than good---Cross-examination transpired that said witness had no influence upon the complainant party---Said witness had not raised alarm nor immediately informed the police and did not apprehend the accused---Statement of the said witness remained uncorroborated and unsubstantiated---Other person, who was accompanying at the time when the alleged confession was made, was not examined by the prosecution---Said facts certainly raised serious doubt about the veracity of the witness and his testimony was not upto the mark to place any reliance upon the same.

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

----Ss. 164 & 364---Extra-judicial confession---Scope---Extra-judicial confession was a very weak type of evidence and the same obviously needed impartial/strong corroboration from other independent sources.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javed v. The State 2009 SCMR 166 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope--- Prosecution case was that the accused persons while sharing their common intention committed the murder of the sister of the complainant by strangulation---Accused came forward with the stance that suicide was committed by the deceased---Medical Officer, who had conducted autopsy on the dead body of the deceased, had observed a ligature mark around the neck of deceased, but the said mark was absent at the back of the neck---Circumstances suggested that the lady died due to suicidal death through hanging as no ligature mark was present at the back of the neck---In the present case, Medical Officer had failed to clear as to whether the hyoid bone was fractured due to inward or outward compression---Such infirmity would create doubt, the benefit of which would be extended in favour of the accused---Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of rope as weapon of offence---Reliance---Scope---Prosecution case was that the accused persons committed the murder of the sister of complainant by strangulation---Record showed that a joint recovery of rope from accused and co-accused, since acquitted was shown to have been effected from the oven of the house---Said recovery having been disbelieved to the extent of other accused would not bear any significance in the eyes of law.

Sardar Bilal Firdos for Appellants.

Mirza Muhammad Usman, D.P.G. for the State.

Ch. Safeer Ahmad for the Complainant.

Date of hearing: 7th November, 2018.

2019 P Cr. L J 655

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

NOOR AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 206 of 2018, decided on 18th December, 2018.

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

----S. 320---Criminal Procedure Code (V of 1898), S. 439---Qatl-i-Khata---Appreciation of evidence--- Rash and negligent driving---Proof---Identification parade, non-conducting of---Three persons died in an accident with a tractor-trolley allegedly driven rashly and negligently by accused during night hours---Trial Court convicted accused and sentenced him for simple imprisonment for one year on three counts and to pay diyat in sum of Rs. 31,55,542/- to legal heirs of deceased---Validity---Prosecution witnesses had made only general statement that they sustained injuries in occurrence but did not specify any of them---Prosecution did not produce Medico-legal Certificates of said witnesses, which was of vital importance to confirm their presence at the spot---Trial Court, owing to lack of evidence had acquitted accused of the charge under S. 337-G, P.P.C. and neither State nor complainant filed appeal thereagainst---Prosecution witnesses did not know the accused prior to accident yet they positively nominated him for driving tractor-trolley---Driver having fled from the scene immediately after the occurrence, it was doubtful whether they even had his glimpse in darkness of night---No identification test parade was held---High Court set aside conviction and sentence of accused as prosecution had failed to prove its case against accused beyond reasonable doubt and judgment passed by Trial Court suffered from gross misreading/non-reading of evidence---Revision was allowed in circumstances.

Javed Khan alias Bachha and another v. The State and another 2017 SCMR 524; State through Advocate-General, N.W.F.P. v. Mohib Gul 1989 ALD 187(2); Muhammad Sarwar v. The State 1995 PCr.LJ 1152; Ravi Kapur v. State of Rajasthan AIR 2012 SC 2986 = 2013 SCMR 480; Muzaffar Ali alias Nannah v. The State 1999 MLD 567; Ghulam Mustafa v. The State 2004 PCr.LJ 1869; Muhammad Luqman v. The State PLD 1970 SC 10 and Muhammad Jamshaid and another v. The State and others 2016 SCMR 1019 rel.

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

----S. 320---Qatl-i-Khata by negligent and rash driving---Determination---Qatl-i-Khata by rash and negligent driving is a distinct category of offences for which investigating agency needs to have special approach---Such distinction arises because it is difficult to find witnesses who are in position to depose about sequence of vital events during few moments immediately preceding actual accident which could help in ascertaining its true cause---When the driver manages to flee from the scene after crash, there is problem of tracing/identifying him.

Nageshwar Sh. Krishna Ghobe v. State of Maharashtra AIR 1973 SC 165 rel.

Khalid Ibni Aziz for Petitioner.

Muhammad Ahsan-ul-Haq, Deputy District Public Prosecutor for the State.

Mian Abdul Rehman Khan Joiya for the Complainant.

Date of hearing: 18th December, 2018.

2019 P Cr. L J 665

[Lahore]

Before Muhammad Qasim Khan, Miss Aalia Neelum and Sardar Ahmed Naeem, JJ

MUHAMMAD JAWAD HAMID and another---Petitioners

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Criminal Revisions Nos. 9027 and 7067 of 2017, decided on 26th September, 2018.

Per Muhammad Qasim Khan, J.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition filed against an interim order passed by the Anti-Terrorism Court during proceedings of a case---Maintainability---Such a petition was not maintainable.

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

----S. 204---Private complaint---Order for summoning person complained against---"Adverse order"---Scope---Order passed for the summoning of the "person complained against" under S. 204, Cr.P.C. modified the status of said person to an "accused" and offered him/her an opportunity to respond to the charges levelled against him---Any such order, therefore, did not tantamount to infringement of any right of that person and could not be treated or deemed as an "adverse order"---Opportunity was afforded to such person to explain his position.

Noor Muhammad v. The State PLD 2007 SC 9 ref.

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

----S. 204---Private complaint---Order for summoning only some of the persons complained against---Scope and effect---In certain cases, the court may summon only a few accused and refuse to summon certain other accused persons---In such cases the order not to summon some of the persons complained against to such extent amounted to partial dismissal of the complaint.

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

----Ss. 203 & 204---Private complaint---Judicial order---Order passed under Ss. 203 & 204 of Cr.P.C. was a judicial order.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 ref.

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

----S. 203---Private complaint, dismissal of---Order passed under S. 203, Cr.P.C.---Scope---Such order could not be held as autrefois or statutory acquittal---At the most, dismissal of the complaint as a whole or non-summoning of some of the persons complained against may have the effect of discharge---Complainant, at his own option, may file a subsequent fresh complaint on same allegations by adding some new facts/grounds and mentioning any new material/evidence which earlier were not in his knowledge or the complainant was not in a position to bring them on record.

Mst. Robina Rashid v. Farrukh Amin PLD 2011 FSC 121; Ibrar Hussain Shah v. Syed Waris Shah 2015 PCr.LJ 784 and Tariq Javed v. Hom Purkash 2018 PCr.LJ 771 ref.

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

----Ss. 202 & 203---Private complaint---Right of audience of the "persons complained against" in case where complaint was dismissed under S. 203, Cr.P.C. as a whole or to the extent of some of the persons complained against---Scope---Until process was issued, the person complained against did not have the status of an accused and had no right of audience before the Trial Court or before a superior Court at the pre-process stage---In the proceedings under S. 202, Cr.P.C. the person complained against had no right to appear and participate in such pre-trial proceedings---At such preliminary stage the court ascertained the truth or falsehood of the allegations levelled in the complaint.

Mst. Bashir Begum and 2 others v. Ghulam Nabi and another PLD 1972 Lah. 185; Mannupsingh v. Sahadeo Sadhu AIR 1929 Patna 230; Abdulla Jan v. Totigul AIR 1935 Pesh. 14; Major Subodh Shukla v. Major R.S. Dudee (Madhya Pradesh) (2007) (1) MPHT 431 and Somu @ Sumasundaram and others v. The State and another 1985 Cr.LJ 1309 ref.

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

----Ss. 203, 204, 435 & 439---Anti-Terrorism Act (XXVII of 1997), S. 6---Private complaint---Dismissal of complaint or summoning of accused---Revisional jurisdiction of the High Court---Scope---Orders of Anti-Terrorism Court dismissing of complaint or summoning of the accused were amenable to the revisional jurisdiction of the High Court as provided under the Criminal Procedure Code, 1898.

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

----Ss. 200 & 204---Private complaint---Examination of evidence---Scope---In a complaint case, Trial Court was not required to examine material minutely and or in depth, but had merely to see that prima facie a case had been made out to proceed further with the matter for issuance of warrant or summons (as the case may be) under S. 204, Cr.P.C.---At the stage of consideration of the private complaint the court was not expected to see whether the allegations were likely to be proved by the materials produced before court.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; Noor Muhammad v. State PLD 2007 SC 9; Abid Shah v. Additional Sessions Judge Sheikhupura PLD 2009 Lah. 444; Sher Singh v. Jatendranath Sen AIR 1931 Cal. 607; 2010 SCMR 194; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 and Sreekumar S. Menon v. State of Kerala 2004 (2) KLT 53 ref.

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

----Ss. 200 & 204---Private complaint---Issuance of process or summons---Burden and standard of proof---Scope---To take cognizance of offence in complaint case, burden of proof in preliminary enquiry for the issuance of process or summons as the case may be was much lighter on the complainant and he was required to establish prima facie case, whereas, the burden of proof placed on the prosecution during regular trial was much stringent and the prosecution was required to establish and prove the case beyond reasonable doubt---At the stage of summoning the accused, court was not to determine guilt or innocence of the accused on the criteria of evaluating the evidence as to whether prosecution had been able to prove its case beyond reasonable doubt or not or whether accused ought to be acquitted by giving benefit of such doubt, which was beyond the scope of proceedings at the stage of issuance of process after making complaint as visualized under Ss. 202 to 204, Cr.P.C.---For deciding the question as to whether a prima facie case had been made out in an inquiry under S. 202, Cr.P.C. the consideration should be from the point of view of the complainant without adverting to any defence which the accused may have---At such stage the accused had no locus standi and was not entitled to be heard on the question whether process should be issued against him or not.

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

----Ss. 200 & 204---Private complaint---Issue of process---Object and scope of S. 202, Cr.P.C.---Scope of S. 202, Cr.P.C. was to separate the founded from the unfounded---Court had to satisfy itself as to the truth or falsehood of the complaint before issuing of process to the persons complained against---Object and scope of S. 202, Cr.P.C., was to allow free, fair and full opportunity to complainant to produce some material to make out grounds for issuing processes against accused; to ascertain the truth or falsehood of the allegations for which the court was bound not only to scrutinize contents of complaint, nature of allegations made therein and material in support of accusation but also to call for record, report or summon any person, who in the opinion of the court, was acquainted with facts of the case and may be helpful to the court to "satisfy itself" in terms of S. 202, Cr.P.C., or the court may enquire or investigate the matter as provided under said section---Possibility of accusations turning out to be false or frivolous at the trial should not overbear the court from issuing the process if material available prima facie disclosed the case against the person complained---At such stage protracted inquiry or full dress rehearsal of trial was not required.

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

----Ss. 202 & 204---Private complaint---Inquiry/investigation into complaint---Scope---Court was to adopt the process of inquiry or investigation by applying its judicious mind considering the facts and the circumstances of each case before it---Court could direct investigation of a case through Magistrate or Ex-Officio Justice of Peace or through police or any other person---Word "any other person" carried vast impression, and, it included officer(s) of any rank of any government, agency or even retired officers---For the purposes of justice if court felt necessary it may approach the federal government to get the services of any of its employees or agency like Federal Investigation Agency, etc., or any officer of any agency or officer related to federal establishment division or federal agency and performing duty in the control of any province but that too with the permission of both---Court while appointing any officer as inquiry or investigation officer shall ensure that no person should be appointed as such who had any direct or indirect interest with the complainant or the person complained against.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

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

----Ss. 154, 156 & 202---Private complaint---Court ordering police officer to conduct inquiry/investigation into complaint in terms of S. 202, Cr.P.C.---Powers of investigation officer---Scope---Section 202, Cr.P.C. conferred all powers available to a police officer in charge of a police station for purposes of investigation except the power to arrest without warrant---Difference between investigation carried out after registration of FIR under S. 154, Cr.P.C. or investigation as initiated under S. 156, Cr.P.C. and investigation carried out under S. 202, Cr.P.C. had to be kept in mind---In the former, investigation officer had vast powers even to arrest an accused without warrants and in the latter he had to proceed with limited scope under the control and direction of the court which had taken cognizance of the complaint and he was only to submit his report for the purposes of assistance whether the person complained against was to be summoned or not and he (Investigation Officer) could not arrest without the permission of the court.

Ramdev Food Products Private Limited v. State of Gujarat (SC) 2015 AIR (SC) 1742; Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others (1976) 3 SCC 736; Dilawar Singh v. State of Delhi (SC) 2007(12) SCC 641; Mr. Bhagat Ram v. Surinder Kumar, (2004) (11) SCC 622 and Raj Kumar Adalkha v. State of U.P. (Allahabad) (2014) (8) ADJ 410 ref.

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

----S. 202---Private complaint---Investigation/inquiry by police---When the court had itself taken cognizance and conducted an inquiry under S. 202, Cr.P.C. and recorded statements of some of the witnesses, the same court could also subsequently direct the police for investigation or further inquiry.

Bhagat Ram v. Surdinder Kumar and others (2004) (11) SCC 622 and Raj Kumar Adalkha and others v. State of U.P. and another 2014 (8) ADJ 410 ref.

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

----Ss. 200 & 202---Private complaint, filing of---Limitation---Delay in filing private complaint---Delay simpliciter was of no significance and only unexplained delay mattered in administration of justice in criminal cases---Consideration of "delay" in filing of private complaint at the pre-trial stage (sections 202 and 203, Cr.P.C.) was only relatable to the sufficiency of grounds for summoning (the person complained against)---Standard of explanation to prove such delay would not be that which was expected at trial stage.

Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; Zafar and others v. Umer Hayat and others 2010 SCMR 1816; Assistant Collector of the Customs, Bombay v. L.R. Melwani 1970 AIR SC 962; Abdul Ghaffar and another v. Syed Shabbir Shah Gillani 2013 PCr.LJ 1544; Muhammad Din and another v. Bashir Ahmad Nasir and another 2007 YLR 2195; Mst. Shamim Ghaffar v. Ghulam Shabbir 2007 YLR 2195; Mst. Nasreen Bibi v. Abdul Waheed 2006 YLR 2934; Muhammad Afzal v. Haji Ahmed 2005 PCr.LJ 979; Saleem v. The State 2004 MLD 424; Haidran Bibi v. Muhammad Ibrahim 1986 MLD 2454; Jairam v. Jagdish 1980 PCr.LJ 243; Pir Ally Immrawan Sahar Essaphel v. Judge Anti-Terrorism Court 2012 PCr.LJ 498; Imtiaz Rubbani alias Billu v. State PLD 2008 Lah. 441; Noor Khan v. The State 1993 PCr.LJ 511; Muhammad Arshad v. State 1989 PCr.LJ 389; S.M. Yaqoob v. Talat Hussain 1987 PCr.LJ 1624; Sher Ali v. The State 1985 PCr.LJ 349 and Jodat Ali v. The State 1969 PCr.LJ 1532 ref.

(o) Words and phrases---

----'Frivolous'---Definition.

Riasat Ali v. Election Tribunal PLD 1961 BJ 11 and Webster's unabridged dictionary (Second Edition) ref.

(p) Words and phrases---

----'Malicious'---Definition.

Webster's unabridged Dictionary (Second Edition) and Encyclopedic Law Dictionary, 3rd Edition 2008 ref.

(q) Words and phrases---

----'Vexatious'---Definition.

Abid Y. Khan v. Muhammad Bashir 1965 PLC 22 and Webster's unabridged Dictionary (Second Edition) ref.

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

----Ss. 200 & 203---Private complaint---Grounds upon which a private complaint could be dismissed as a whole or to the extent of some persons on basis of it being frivolous, malicious and vexatious stated.

Following are the grounds upon which a private complaint could be dismissed as a whole or to the extent of some persons on basis of it being frivolous, malicious and vexatious:

(i) Where the allegations made in the complaint, even if they were taken at their face value and accepted in their entirety, did not prima facie constitute any offence or make out a case against the accused;

(ii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same did not disclose the commission of any offence and make out a case against the accused;

(iii) Where the allegations made in the complaint were so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion that there was sufficient ground for proceeding against the accused;

(iv) Where there was an express legal bar engrafted in any of the provisions of the Criminal Procedure Code, 1898 ("the Code") or any other law (under which criminal proceedings were instituted) to the institution and continuance of the proceedings and/or where there was a specific provision in Cr.P.C. or the concerned Act providing efficacious redressal for the grievance of the aggrieved party;

(v) Where a criminal proceeding was manifestly tainted with mala fide and/or where the proceeding was maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge and it also had no sufficient material in support of allegations.

(vi) If the acts of accused or person complained against were protected by the Constitution or any other relevant law for the time being in force;

(vii) If the accused or person complained against discharged his legal duties and also obeyed the direction, command or order of his superior or any court, legal authority or tribunal.

(viii) Where the concerned court had fully satisfied itself after examining all material aspects that in all probability the complainant may not succeed in bringing charge home against the accused; and

(ix) Where the averments/contents of the complaints/allegations from any angle reflected the abuse of process of law. [p. 699] AA

Noor Muhammad v. The State and others PLD 2007 SC 9 and Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 ref.

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

----Ss. 200 & 202---Qanun-e-Shahadat (10 of 1984), Preamble---Private complaint---Material available on record---During inquiry under S.202, Cr.P.C. the Court had to consider "material" and not the evidence in terms of Qanun-e-Shahadat Order, 1984, therefore, at such stage critical element was "relevance" of such material and not its admissibility or evidentiary value, which was to be established at trial stage.

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

----Ss. 200, 201 & 202---Private complaint, filing of---List of witnesses---For proceedings under Ss. 200, 201 or 202, Cr.P.C., it was not a requirement that lists of witnesses must be appended with the complaint or that all the documents must be mentioned or appended therewith.

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

----Ss. 173, 202 & 204---Private complaint---'Material' that the court could examine---Scope---Police file and police report---Report of Joint Investigation Team (JIT)---Section 202, Cr.P.C. bestowed vast powers upon the court to ascertain the truth or falsehood of the complaint and in such respect it could direct any inquiry or investigation---Court was not bound by only the evidence of the complainant, and it could examine the police file, report under S. 173, Cr.P.C. or a JIT report, prepared in a state case (FIR) registered about the same occurrence---Court could also examine the members of JIT, investigating officer of the case or any other witness recorded during investigation of said case so that complete picture of the occurrence supported by relevant material was before him while passing an order under S. 204, Cr.P.C. (for summoning the accused).

S.M.H. Rizvi v. Abdus Salam and another PLD 1960 SC 358 ref.

(v) Punjab Tribunals of Inquiry Ordinance (II of 1969)---

----S. 6---Criminal Procedure Code (V of 1898), Ss. 202, 203 & 204---Material to be examined by the Court---Scope---Oral depositions, affidavits, site inspection notes, electronic and print media reports etc. collected or recorded by an Inquiry Commission in state case (FIR) registered about the same occurrence---During hearing of the complaint case the court may inspect such material and on its own motion or at the request of the complainant may call the concerned witnesses (who appeared before the Inquiry Commission) to appear in investigation or inquiry of the complaint under S. 202, Cr.P.C. for the purposes of recording of evidence or direct them to produce the relevant documents or to produce the record of electronic and print media and its transcript if required---While passing an order under S. 203 or 204, Cr.P.C., the court had to adjudge the relevance of the material so produced and not its admissibility which was the subject of regular trial---Complainant had a right to produce the evidence/ material collected by the Inquiry Tribunal in case of inquiry/ investigation under S. 202, Cr.P.C., therefore, there was every possibility that such material may or may not qualify as an admissible piece of evidence in subsequent trial proceedings, however, such "material" may be capable of being translated into admissible piece of evidence, leading to the discovery of admissible evidence or it may be helpful to the court in reaching the conclusion that order under S. 204, Cr.P.C. may be passed for the summoning of the accused.

(w) Words and phrases---

----'Design' in context of criminal conspiracy--- Definition.

Black's Law Dictionary, Tenth Edition and Advance Law Lexicon (4th Edition, Volume 2) ref.

(x) Interpretation of statutes---

----Importing a definition, term or phrase provided in one statute into another---Terms, phrases and definitions used in one statute could not be imported into another unless the law expressly provided for the same---However, if the context and object of the two different statutes was the same, the terms used in either of them may be used to understand the purpose of the same.

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

----S. 120-B---Criminal conspiracy, offence of---Proof and scope---For an offence punishable under S. 120-B, P.P.C., the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done an illegal act; the agreement may be proved by necessary implication---Not necessary that all the conspirators must know each and every detail of the conspiracy---Since it would be difficult to get direct evidence of the agreement, a conspiracy could be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence---Mostly, conspiracies were proved by the circumstantial evidence, as the conspiracy was seldom an open affair---Exact period when the conspiracy was hatched could be spelled out---Not always possible "to give affirmative evidence" about the date of formation of the criminal conspiracy---Usually both the existence of the conspiracy and its objects had to be inferred from the circumstances and the conduct of the accused---Encouragement and support which co-conspirators gave to one another rendering the enterprise possible, which if left to an individual effort, would have been impossible, furnished the ground for visiting conspirators and abettors with punishment---Moreover, there was distinction between the conspiracy and offences committed pursuant to conspiracy---Conspirators who did not commit the offence were liable for the offence committed by some of them in execution of the common design.

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

----S. 200(aa)---Public servants---Defence of act done in 'good faith"---Scope---Acts or omissions done by a public servant in good faith, bona fidely or with legal justification were protected under the law---However, such plea or defence may be offered in the appropriate proceedings and ordinarily did not bar the initiation of proceedings out rightly.

State of Orissa v. Bhagaban Barik 1987 AIR (SC) 1265; Oriental Insurance Co. v. State of Bihar 2004 (2) PLJR 458 and Assistant Commissioner Anti Evasion Commercial Taxes, Bharatpur v. Messrs Amtek India Limited (2007) (11) SCC 407 ref.

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

----S. 154---First Information Report (FIR)---Contents---Scope---Each and every detail was not required to be provided in the FIR---Not requirement of law that the complaint should provide full details to canvass the whole scene of the occurrence, describe the weapon of offence, number of witnesses, motive, the role played by the accused or details of the conspiracy.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Ali Muhammad and others v. Syed Bibi and others PLD 2016 SC 484 ref.

Per Aalia Neelum, J.; Sardar Ahmad Naeem, J. agreeing; Muhammad Qasim Khan, J. dissenting.

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

----Ss. 202, 203 & 204---Penal Code (XLV of 1860), Ss. 120-B, 148, 149, 295-B, 302, 324, 337-A(i), 337-A(v), 337-C, 337-F(i), 337-F(iii), 337-L(2), 365, 395, 427, 452 & 506---Anti-Terrorism Act (XXVII of 1997), S. 7---Private complaint---Non-summoning of some of the accused persons including the then Prime Minister, a Provincial Chief Minister, certain Federal and Provincial ministers and senior bureaucrats along with other political personalities ("respondents in question")---Incident involving clash between police and workers of a political party that resulted in about 10 deaths and injuries to several others---After being unsatisfied with the investigation and proceedings of the State case/FIR the complainant moved a private complaint---After recording cursory evidence, the Trial Court opined that there was no evidence to prove a prima facie case against the "respondents in question", as such, they were not summoned and their names were directed to be deleted from the list of respondents---Legality---[Per Muhammad Qasim Khan, J dissenting (Minority view): In the first application moved by the complainant side for registration of FIR, it had provided the information and it was duty of the concerned investigating agency to dig out the truth, call the witnesses and collect the material in such respect---Complainant was not satisfied with the investigation in the FIR as senior officers and political high-ups were involved---During the proceedings of the private complaint the observations of Trial Court for disbelieving the cursory statements on the ground that the complainant side had not provided specific details about the number and colour of the vehicles, the building where meetings (for reconciliation) were convened, details of the call detail records, the way (route) of departure, did not appeal to reason---Trial Court considered the case from the angle of the defence---At the same time it appeared that the Trial Court did not fulfil its obligation to determine truth or falsehood and it even did not examine the report under S. 173, Cr.P.C. and report of the Joint Investigation Team (JIT) in the state case registered regarding the same occurrence---Impugned order to the extent of non-summoning of the "respondents in question" was against law as the sufficiency of material available on file had not been properly appreciated, thus the same was set aside---His Lordship remanded the case to the Trial Court with the directions that it was duty of the court, during proceedings under S. 202, Cr.P.C., to determine the falsehood or truthfulness of allegations levelled in the complaint, and the court may hold further inquiry into the matter or get it investigated through any person/agency or a team of experts, as the investigation by police officers did not appear to be appropriate exercise for the reason that number of police officers were involved in the case and had already been summoned; that to avoid complexity and multiplicity of the trial, the proceedings of the case to the extent of already summoned accused persons shall stand suspended till the conclusion of inquiry/investigation; that afterwards, if the remaining persons complained against were summoned by the Trial Court, it shall hold de novo trial and if it did not find sufficient grounds to proceed against the remaining persons complained against, then it shall proceed against the already summoned accused persons from its current stage and decide the matter strictly in accordance with law]---[Per Aalia Neelum, J; Sardar Ahmed Naeem, J concurring (Majority view): Private complaint was filed by the complainant with a delay of 21 months from the date of occurrence and with delay of six months and 19 days from the date of first submission of the report under S. 173, Cr.P.C. in State case (FIR)---In the private complaint, the complainant nominated 139 accused persons, whereas, in State case (FIR) 23 accused persons were nominated---In addition, the complainant in the private complaint had mentioned total number of injured persons as 66, whereas in FIR, 53 injured persons were mentioned---Complainant boycotted the investigations conducted by two JITs constituted by the government in the State case (FIR)---Story/roles ascribed to the respondents in question in the private complaint were not identical with the story as put up by the prosecution in the State case (FIR)---In the State case (FIR) the complainant impleaded only 9 of the respondents in question as accused but no specific role was attributed to them, whereas in the private complaint all 12 of the respondents in question had been impleaded---Complainant with some (ulterior) motive had introduced entirely a new story at the time of the filing of the private complaint---Furthermore in the private complaint, some additional allegations had been levelled in continuation of the attempt to connect the respondents in question with the incident---Allegations leveled in the private complaint were not based on direct knowledge derived from any individual but on conjectures and presumptions---Conscious of the fact that the respondents in question were not responsible for the offence, the complainant had sought aid of Ss. 109, 120-B & 506, P.P.C., but, again the complainant could not allege necessary facts to show prior meeting of minds of the respondents in question essential to make out a case of common intention or participation of the said respondents in any abetment, criminal conspiracy and criminal intimidation---In the absence of the existence of ingredients to constitute the alleged offences of criminal conspiracy, abetment and criminal intimidation, proceeding against the respondents in question on the basis of private complaint would be abuse of process of court---Respondents in question could not be summoned in the private complaint by invoking S. 120-B or Ss. 109 & 506, P.P.C., as the words allegedly stated by the some of the respondents in question during a reconciliation meeting did not constitute commission of offence of criminal conspiracy, abetment and criminal intimidation---At no point of time, till registration of case, it was the version of the complainant that he also attended the (reconciliation) meeting chaired by the Provincial law minister (one of the respondents in question)---Even in the private complaint the complainant had not mentioned that he also attended said meeting, however, in his cursory statement the complainant stated that he had attended the said meeting---No authenticity could be given to newspapers cuttings that reported threats allegedly made by some of the respondents in question---Complainant had alleged that an aircraft carrying the head of his political party was prevented from landing at its destination and was diverted to another city, however no specific date, time and name of the aircraft, was provided in the complaint or in the statement made on oath nor in the State case (FIR)---Importantly the complainant had not stated in his statement that any complaint was lodged by any of the passengers or members of crew of the said aircraft---Order of non-summoning the respondents in question did not suffer from any illegality or perversity as Trial Court had examined all the witnesses which the complainant desired to produce and intended to rely upon].

Per Muhammad Qasim Khan, J; Sardar Ahmad Naeem, J, concurring [Majority view]

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

----Ss. 202, 203 & 204---Penal Code (XLV of 1860), Ss. 120-B, 148, 149, 295-B, 302, 324, 337-A(i), 337-A(v), 337-C, 337-F(i), 337-F(iii), 337-L(2), 365, 395, 427, 452 & 506---Anti-Terrorism Act (XXVII of 1997), S. 7---Private complaint---Summoning of Provincial Inspector General of Police ("the petitioner") as an accused---Incident in question involved clash between police and workers of a political party that resulted in about 10 deaths and injuries to several others---After being unsatisfied with the investigation and proceedings of the State case/FIR the complainant moved a private complaint---After recording cursory evidence, the Trial Court summoned the petitioner to face trial in the private complaint---Legality---[Per Muhammad Qasim Khan, J (Majority view): Sufficient material for summoning of the Provincial Inspector General of Police (the petitioner) was available before the Trial Court---Petitioner had a remedy before the Trial Court to move an application under S. 265-K, Cr.P.C. for redressal of his grievance---[Per Sardar Ahmad Naeem, J concurring (Majority view): Perusal of the summoning order revealed that the Trial Court had applied its judicial mind and not only evaluated the statements of the complainant's witnesses but had also reviewed the documents appended with the complaint, marked and exhibited during the course of recording of the statement of the witnesses---By taking cognizance of the complaint, the Trial Court neither acted illegally nor with material irregularity---Even otherwise the High Court was always reluctant to interfere in a case where court of competent jurisdiction after examining evidence adduced before it concluded that a prima facie case was made out---No scope of interference was found with the exercise of discretion by the Trial Court].

Per Aalia Neelum, J.

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

----Ss. 202, 203 & 204---Private complaint---Inquiry under S. 202, Cr.P.C.---Scope---Scope of such inquiry was extremely limited only to ascertain the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether a prima facie case for issue of process had been made out---In coming to a decision as to whether a process should be issued the court could take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appeared to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him/them---Court had been given an undoubted discretion in the matter but the discretion had to be judicially exercised by it---Once the Trial Court had exercised its discretion it was not for the High Court, to substitute its own discretion for that of the Trial Court or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused---However, it was clear that to decide whether a process should or should not be issued, the Court had to consider whether the complaint disclosed all the essential ingredients of an offence---If the complaint did not disclose any essential ingredient of the offence, that would be a case where the complaint, taken on its face value, did not make out any case for issue of a process. [Majority view]

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

----Art. 164---Newspaper cuttings and video recording of statements of accused---Proof---Such evidence had to be proved by its author or creator. [Majority view]

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

----S. 204---Private complaint---Issue of process, review of---Order passed under S. 204, Cr.P.C., was not a "judgment" and could be reviewed by the Court, seized with the matter, if some incriminating material was brought on the file during trial. [Majority view]

Per Sardar Ahmed Naeem, J.

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

----S. 204---Private complaint---Issue of process---Scope---Requisite conditions listed under S. 204, Cr.P.C. was the presence of sufficient grounds and the satisfaction of the court to be ascertained from the facts placed before it---Availability of some admissible evidence on the record was not essential before summoning the accused---For taking cognizance under S. 204, Cr.P.C. it was only prima facie case that was required and the court was not expected to go into the details by conducting a preliminary inquiry---If on the basis of material adduced by the complainant it could be said that there was prima facie evidence connecting the accused with the crime and the court was satisfied that there was sufficient ground for proceeding with the complaint, it may issue process against the accused---Law did not require production of entire evidence at preliminary stage before summoning an accused person.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

Rai Bashir Ahmad, Muhammad Azhar Siddique, Mirza Naveed Baig, S. Parveen Mughal, Naeem ud Din Chaudhry, Abdullah Malik, Sardar Ghazanfar Husain, Adeel Hassan, Syed Umair Abbas and Ch. Naeem ud Din Chaudhry for Petitioners (in Criminal Revision No. 9027 of 2017).

Azam Nazir Tarrar with Imran Arif Ranjha and Imran Nazir Chatha for Petitioners (in Criminal Revision No. 7067 of 2017).

Syed Ehtisham Qadir, Prosecutor General Punjab assisted by Muhammad Amjad Rafiq, Additional Prosecutor General, Rai Akhtar Hussain, Deputy Prosecutor General and Muhammad Hammad Khan Rai, Assistant Advocate General for the State.

Dates of hearing: 19th, 23rd, 25th April, 11th, 15th, 16th, 17th, 21st, 22nd, 23rd, 24th, May, 26th and 27th June, 2018.

2019 P Cr. L J 773

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

AMIR RAZZAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 388, Criminal Misc. No. 722-M and Criminal Revision No. 170 of 2014, heard on 13th February, 2019.

Penal Code (XLV of 1860)---

----Ss. 496B & 376---Criminal Procedure Code (V of 1898), S. 203C---Constitution of Pakistan, Art. 13---Fornication---Rape---Complaint in case of fornication---Protection against self-incrimination---Appreciation of evidence---Complainant, a divorcee, alleged that six months back, accused proposed her and during a visit in her home, sexually assaulted her in consequence whereof she became pregnant when finally he backed out from his commitment, leaving her with no option but to disclose the affair to the family---Trial Court convicted the accused under S. 496B, P.P.C. while holding the affair as consensual and directed the police to proceed against the complainant for fornication---Validity---Complainant was 28 years of age when she entered the witness-box; she was a divorcee and admitted to have accepted accused's proposal---Such alleged proposal was subsequently revoked and in that backdrop she alleged carnal assault, countenanced by her in the hope that the accused would ultimately forge a bond with her---Complainant kept the affair discreetly secret and only took the family into confidence after her pregnancy became apparent; her long silence could not be equated as quiescence or submission or retirement under fear or duress---On the contrary, circumstances suggested her voluntary participation pursuant to exercise of intelligence being fully cognizant of the knowledge, significance and consequences thereof while exercising a choice between resistance and assent---Such facts could be safely assumed given her age and previous matrimonial experience---Said fact was confirmed by her own narrative reflecting upon attempts made to settle the issue of marriage; she never raised allegation of assault either without consent or against her will---Complainant could not take a sommersault in the face of accused's betrayal so as to revoke her consent retrospectively by conveniently alleging force, late in the day---Complainant was constitutionally protected against self-incrimination and, thus, could not be exposed to corporal consequences in the face of rejection of her narrative---Section 203C of Cr.P.C. created procedural impediment for the suggested prosecution---Petitions were disposed of, accordingly.

Malik Mushtaq Ahmad for Appellant.

Complainant in person.

Khalid Parvez, DPG with Iftikhar, SI for the State.

2019 P Cr. L J 781

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUMTAZ alias TAJA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1380, 1562 and Murder Reference No. 380 of 2013, heard on 17th December, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about forty five minutes in lodging the FIR---Effect---In the present case, occurrence took place on 13.5.2010 at 1:15 p.m. and matter was reported to the police with promptitude at 2:00 p.m.---Distance between the place of occurrence and the police station was one kilometre---Record transpired that soon after the occurrence, the complainant reached police station, where on his statement, FIR was chalked out wherein the accused was duly named with a specific role--- FIR was lodged promptly, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused-appellant was charged that he along with acquitted accused persons committed murder of the father of the complainant---Motive behind the occurrence as disclosed in the crime report was dispute over landed property---Ocular account consisted of the statement of complainant, supplemented by his maternal uncle/eye-witness---Presence of complainant along with his father/deceased seemed to be quite natural---Eyewitness who had attracted to the spot on hearing hue and cry was maternal uncle of the complainant---Both the witnesses, in categorical terms, stated that the accused along with other assailants reached the place of occurrence while armed with hatchet, inflicted blow at the back side of the head of the deceased---Statement of said witnesses reflected that they remained unanimous about the date, time, mode and manner of occurrence---Statement of the prosecution witnesses of ocular account rang true and seemed to be natural---No question was put to the prosecution witnesses regarding the salient features of the prosecution version in order to create any sort of dent in the credibility of their testimony---Medical officer had observed two injuries on the back side of the head of the deceased---Post-mortem examination conducted within three hours, ruled out the possibility of any fabrication---Bloodstained earth secured was dispatched to the offices of Chemical Examiner and Serologist---Reports showed that its origin was determined to be human blood---Hatchet was recovered from the accused---During the course of investigation accused had been found guilty---Prosecution had proved its case against the accused through leading cogent evidence, in circumstances---However, in the crime report, the accused-appellant had been ascribed single blow of hatchet on the backside of head of the deceased and had not repeated the same---On the same set of evidence, co-accused was acquitted of the charge and appeal filed against his acquittal had been withdrawn by complainant---Case of accused-appellant fell within the ambit of mitigation, in circumstances---Appeal was dismissed with modification in sentence from death to life imprisonment.

Israr Ali v. The State 2007 SCMR 525 rel.

(c) Criminal trial---

----Witness--- Related witness---Statement of related witness---Reliance---Scope---Mere close relationship of the witnesses with deceased would not discard their testimony if otherwise the same was trustworthy, confidence inspiring, appealing to reason and corroborated by independent circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

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

----S. 417---Appeal against acquittal---Presumption---Once acquittal had been recorded, presumption of innocence became double in favour of the accused.

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

----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 417(2-A)--- Qatl-i-amd, common intention---Appeal against acquittal---Respondent/acquitted accused had been named in the crime report with the role of inflicting hatchet blow on the head of deceased---Both the prosecution witnesses of ocular account had fully implicated the respondent-acquittal accused as one of the culprits of the occurrence---Record showed that no question was put to the prosecution witnesses regarding salient features of the prosecution version about the role played by respondent (acquitted accused) during the occurrence---Facts remained that injury ascribed to the respondent was corroborated from the post-mortem examination report as well as pictorial diagram available on record---During the course of investigation, the respondent (acquitted accused) was found guilty---Reasons advanced by Trial Court while discarding the prosecution evidence to the extent of respondent (acquitted accused) were nothing but a novel story, hence, the same could not be given any legal credence---Sufficient incriminating evidence was available on record to connect the acquitted accused-respondent with the occurrence, thus, he was liable to be convicted under the provision of S. 302(b), P.P.C.---In the crime report, the respondent had been ascribed single blow of hatchet on the back side of head of the deceased and had not repeated the same---On the same set of evidence, co-accused was acquitted of the charge and appeal filed against his acquittal had been withdrawn by complainant---Case of respondent fell within the ambit of mitigation, in circumstances---Appeal against acquittal was allowed, in circumstances and respondent was convicted under S. 302(b), P.P.C., and sentenced to undergo imprisonment for life.

Shamas-ud-Din v. Muhammad Shahbaz Qammar and 2 others 2009 SCMR 427; The State Through Advocate General NWFP, Peshawar v. Humayoun and others 2007 SCMR 1417; (1) Amal Sherin (2) Zahir Gul v. The State through against NWFP, Peshawar PLD 2004 SC 371; Muhammad Ali v. Muhammad Yaqoob and others 1998 SCMR 1814 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.

Aman Ullah Ranjha for Appellants (in Criminal Appeal No.1562 of 2013).

Haider Pasha, Defence Counsel for Appellants.

Abid Saqi, Imtiaz Noor Malik and Uzma Raziq Khan for Appellant (in Criminal Appeal No. 1562 of 2013).

Aman Ullah Ranjha for Respondents (in Criminal Appeal No.1562 of 2013).

Nisar Ahmed Virk, Deputy Prosecutor-General for the State.

Abid Saqi, Imtiaz Noor Malik and Uzma Raziq Khan for the Complainant.

2019 P Cr. L J 821

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

KARIM DAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 856 of 2012, heard on 28th February, 2019.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, presence of---Proof---Benefit of doubt---Four accused persons were sent to face trial and out of them, one was convicted and sentenced to death while remaining three were acquitted of charge---Validity---Injured was brought to hospital by police and names of any of eye-witnesses did not find mention in medico-legal examination certificate---If eye-witnesses were present their names would have found mention in medico-legal examination certificate---Men might lie but documents did not and statements made by such eye-witnesses failed to receive any independent corroboration or support and they failed to prove their presence on spot at time of occurrence---No report of Forensic Science Agency, chemical examiner or serologist were produced by prosecution to reveal that there was human blood identified on weapon of offence (sota)---Even witnesses to recovery of weapon of offence (sota) from accused did not state that same was stained with blood---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of charge---Appeal was allowed in circumstances.

Muhammad Rafiq v. State 2014 SCMR 1698; Nasrullah alias Nasro v. The State 2017 SCMR 724 and Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 ref.

Imtiaz alias Taj v. The State 2018 SCMR 344; Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Javed v. The State 2016 SCMR 2021; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Malik Amir Manzoor Awan for Appellant.

Basir Ahmad Malik, Deputy District Public Prosecutor for the State.

Wajahat Hussain Khan Langah for the Complainant.

2019 P Cr. L J 872

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD TARIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 5957-B of 2018, decided on 3rd December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonor of cheque---Offence not falling within prohibitory clause of S. 497, Cr.P.C.---Scope---First Information Report was registered after almost three months of dishonoring of the cheque---Complainant contended that the petitioner was involved in as many as six other cases of similar nature---Record revealed that it was not mentioned in the FIR as to when cheque in question was drawn---First Information Report was registered after a delay which could not be explained---Cheque in question related to the account of the father of the petitioner and not of his (petitioner's) account---Petitioner had not been convicted in any of the cases registered against him---Nothing was recovered from the possession of the petitioner in the present case---Concession of bail was a procedural relief having nothing to do with the final decision of the trial---If a person, otherwise, was found entitled to the concession of bail, his liberty could not be curtailed on the ground of the charge being of heavy amount---Offence punishable under S. 489-F, P.P.C. carried maximum punishment of imprisonment for three years---Case of petitioner did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petitioner had relied on documentary evidence which was in the possession of the prosecution and there was no possibility of the petitioner tampering with the same---Incarceration of the petitioner would tantamount to punishing him despite being innocent---Case of accused was dependent upon documentary evidence---Petitioner was admitted to bail, in circumstances.

Qurban Ali v. The State and others 2017 SCMR 279; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another PLD 2008 SC 438 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Rizwan Ahmad Khan for Petitioner.

Ch. Aftab Shabbir Arain for the Complainant.

2019 P Cr. L J 883

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

ASAD NAWAZ---Petitioner

Versus

ZULFIQAR AFZAL KHAN and others---Respondents

Criminal Revision No. 191 of 2017, heard on 21st December, 2017.

Criminal Procedure Code (V of 1898)---

----S. 540---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Penal Code (XLV of 1860), S. 302---Re-examination of witness before cross-examination---Petitioner was aggrieved of order passed by Trial Court allowing reexamination of witness prior to cross-examination---Validity---Procedure prescribed through S. 540, Cr.P.C. and Arts. 132 & 133 of Qanun-e-Shahadat, 1984 was quite different---Court was empowered under S. 540, Cr.P.C. that while realizing appropriate and necessary, could call and examine a person or re-examine a witness who had already been examined---Mode and order was not provided under S. 540, Cr.P.C. under which examination of a witness should be carried out---Provisions of Art. 132 of Qanun-e-Shahadat, 1984 defined classes of examination and Art. 133 of Qanun-e-Shahadat, 1984 prescribed mode by which examination-in-chief, cross-examination, re-examination and re-cross-examination should be recorded---Trial Court was justified in allowing re-examination of witness but its intention to re-examine witness prior to cross-examination by defence was not as per requirements---High Court directed that firstly, cross-examination of witness be got conducted and thereafter he should be re-examined and if defence wanted to re-cross examine him, same be allowed---Petition was disposed of accordingly.

Malik Waheed Anjum for Petitioner.

Sh. Istajabat Ali, D.P.P. with Dil Pazeer, ASI for the State.

Tanvir Iqbal Khan for Respondent No.1.

2019 P Cr. L J 894

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

RAB NAWAZ---Petitioner

Versus

MUBRI KHAN and others---Respondents

Criminal Revision No. 127 of 2018, heard on 30th January, 2019.

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

----Ss. 250 & 367---General Clauses Act (X of 1897), S. 24-A---Compensation for false, frivolous or vexatious accusations---Show cause notice, non-issuance of---Effect---Verbal order---Judgment to be in written form---Scope---Complainant had got registered a case against the accused persons for theft and house trespass---Magistrate acquitted the accused persons of the charge and burdened complainant with costs---Appeal against imposition of costs was dismissed by Appellate Court---Validity---No separate finding was recorded whereby accusations leveled by complainant had been declared as false, frivolous or vexatious---No express show cause notice had been issued to the complainant and no reply had been sought or received---Magistrate had mentioned in the judgment that petitioner was orally asked for compensation, but he failed to make any justification---Administration of justice did not allow oral criminal proceedings as every act of the court should be express and unambiguous---Verbal order or proceeding of the court could not be given any legal value---Order or proceeding by a competent authority, even if, written, but not signed, was nothing in the eyes of law---Section 24-A, General Clauses Act, 1897 mandates that any order or direction, given by any authority, office or person must be express, i.e. in written form---Written order or proceeding identified their author or recipient---Written form was the only medium that brought to fore the reason behind an order or proceeding, which was to undergo accountability of judicial review---Order or proceeding in writing was integral to rule of law---Verbal order had no legal existence as such did not constitute an "order" as envisaged under S. 367, Cr.P.C.---Revision petition was allowed; judgment of Magistrate for payment of compensation to the complainant and order of Appellate Court were set aside, in circumstances.

Zahid Hussain and another v. The State 1998 SCMR 611 and Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328 foll.

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

----S. 250---False, frivolous or vexatious accusations---Compensation---Pre-requisites to be followed by a Magistrate before payment of compensation, enumerated.

Following are the pre-requisites to be followed by Magistrate for grant of compensation.

1. There should be acquittal of an accused;

2. the Magistrate should be of the opinion that accusation/charge was false, frivolous or vexatious;

3. the Complainant should be called to show cause that why he should not pay compensation to acquitted accused(s);

4. the Magistrate should record, any cause made by the complainant;

5. the Magistrate should consider the cause and then record an opinion that cause is unjustified and the accusation/charge was false. [p. 898] A

Raja Muhammad Faisal Ghani Janjua for Petitioner.

Umer Hayat Gondal, Additional Prosecutor-General for the State.

Malik Ihsan Haider for the Complainant.

2019 P Cr. L J 902

[Lahore]

Before Muhammad Qasim Khan, J

The STATE through Prosecutor-General Punjab, Lahore---Petitioner

Versus

KARAM DAD BHATTI---Respondent

Criminal Appeal No. 1611 of 2014, decided on 2nd October, 2018.

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

----S. 342---Statement of accused---When prosecution evidence is rejected in entirety, the statement of the accused under S. 342, Cr.P.C. is to be accepted in toto and without scrutiny.

The State v. Muhammad Hanif and others 1992 SCMR 2047 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Preamble---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Prosecution case was that accused being proprietor of a Business House obtained a loan amounting to Rs. 4,35,00,000 from a Bank but did not return the same---On repeated demands of the Bank, accused issued a cheque, which was dishonoured---Accused had issued cheque to the Bank as a customer for return of loan---Action could only be taken by the Bank against the customer under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and no other law---Banking Court had exclusive jurisdiction in the matter under the said Ordinance---Prosecution case was full of patent illegalities right from its inception---Appeal was dismissed in limine.

Syed Mushahid shah and others v. Federal Investment Agency and others 2017 SCMR 1218 rel.

Muhammad Amjad Rafiq, Additional Prosecutor-General for the State.

2019 P Cr. L J 920

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed and Sadiq Mahmud Khurram, JJ

ASIM NAWAZ alias KALEEM NAWAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 797-ATA of 2016, decided on 18th December, 2018.

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

----Ss. 9 & 11-W(2)---Sectarian hate speech and propagating banned organizations---Appreciation of evidence---Sentences, reduction in---Special circumstances---Effect---Accused was convicted by Trial Court on sectarian hate speech, propagating banned organizations and was variously sentenced to imprisonment and fine---Validity---Detail of audio files, graphic files and multimedia files was provided in accompanying DVD-I, DVD-II and DVD-III by Punjab Forensic Science Laboratory---Investigating officer also received Verisys verification regarding ownership of SIM Card recovered from mobile phone, which was in name of accused---Prosecution witnesses gave each and every detail of prosecution case and were cross-examined at length---Nothing fruitful cropped up during cross-examination---Tenor of cross-examination also revealed that facts in issue were not challenged seriously---Trial Court rightly appreciated evidence and had rightly found accused guilty of charge levelled against him---Prosecution had successfully proved its case beyond shadow of doubt by producing relevant and admissible evidence---High Court maintained conviction of accused but taking into account mitigating circumstances reduced sentence of imprisonment to that of already undergone but quantum of fine was maintained---Appeal was dismissed accordingly.

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

----Ss. 9 & 11-W(2)---Sentence---Words 'may extend to' in Ss. 9 & 11, Anti-Terrorism Act, 1997---Connotation---By using words 'may extend to' in such provisions of law provides unspecific sentences and is indicative that courts have to appreciate circumstances indicative of reformation of a convict before deciding about quantum of sentence.

(c) Criminal trial---

----Sentence, quantum of---Philosophies of sentencing accused enumerated.

There are the five philosophies of sentencing .The first one is retribution and the purpose is to emphasize taking revenge on a criminal, perpetrator or offenders. The next philosophy is incapacitation which means a way to reduce the chances of an offender committing another crime. Then is the deterrence in which a criminal is made to fear going back to jail or prison. Rehabilitation is also another philosophy of sentencing by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance. Reparation is the last of the five philosophies of sentencing in which effort is made to repay victim(s).

Muhammad Maalik Khan Langha for Appellant.

Ashfaq Ahmad Malik, Deputy District Public Prosecutor with Mian Yaqub, ASI, CTD for the State.

2019 P Cr. L J 946

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch. JJ

KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1098 and Murder Reference No. 337 of 2016, decided on 27th February, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the brother of complainant---Motive behind the occurrence was that accused persons had suspicion that deceased had illicit relations with daughter of accused---Deceased was done to death during night at 1:30 a.m. in front of his shop regarding which FIR was registered against unknown accused---No source of light had been mentioned in the FIR---Complainant had not nominated the accused in the FIR rather he introduced the appellant as accused on the evidence of vajtakar furnished by a witness---Said witness had stated that on the night of occurrence, he and other witness, since given up, left their shops to eat Sehri proceeded to their houses---At about 1.30 a.m. (night) when they reached near the shop of deceased, they had seen in the light of motorcycle that accused while armed with blood-stained kassi had no shoes in their feet along with his son/co-accused armed with blood-stained hatchet running from place of occurrence---Said witnesses tried to apprehend them but accused extended threat to them of dire consequences; thereafter, they went to the place of occurrence---Site-plan did not show the shop of witness of vajtakar around the place of occurrence---Said witness being chance witness had failed to establish his presence at the place at the relevant time---Name of said witness had not been mentioned in the FIR---Complainant had stated in his cross examination that distance between his house and house of accused was one and half acre and he knew accused and his son for about 14/15 years---Complainant had stated that he had not named accused and his son in his application moved for the registration of FIR as he was not able to identify them at the time of occurrence and his eyesight was weak and he could not see clearly---Supplementary statement of complainant in which he had nominated the appellant as accused was not believable, in circumstances---No identification parade had been held for identification of the accused---Identity of the accused in the dark hours of the night was not free from doubt---Prosecution had failed to prove its case, in circumstances---Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

Arshad Khan v. The State 2017 SCMR 564 rel.

(b) Criminal trial---

----Witness---Evidence of witness of vajtakar---Scope---Vajtaker is a weak type of evidence and same could be procured at any time during the investigation.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---No motive had been mentioned in the FIR---Complainant had introduced motive by stating that accused had suspicion of illicit relations of deceased with his daughter; but no solid reason was produced in that respect---Prosecution had failed to prove the motive, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and other articles---Reliance---Scope---Investigating Officer, on the disclosure of accused, recovered blood-stained kassi from residential house of accused having human hair stuck with the same---Recovery witness did not say in his examination-in-chief that kassi had human hair stuck with it---Report of the Forensic Science Agency did not show that human hair was found stuck with the kassi---Said contradiction could not be ignored, rather had shattered the recovery proceedings---Prosecution witness had stated in his examination-in-chief that he had seen accused while running from the place of occurrence without shoes---Said witness had identified the pair of shoes lying at the place of occurrence left by accused which were taken into possession by the Investigating Officer through recovery memo---Investigating Officer did not state in his examination-in-chief that said shoes were shown to the accused who owned the same---Said recovery, even otherwise, could not be believed.

(e) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt in the prudent mind about the guilt of the accused, accused 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.

Asad Nisar for the Complainant.

Tariq Javed, DPP for the State.

2019 P Cr. L J 986

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

ABDUL REHMAN alias MANNI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 496, P.S.L.A. No. 201 and Murder Reference No.169 of 2016, decided on 9th January, 2019.

(a) Administration of justice---

----Each criminal case had its own peculiar facts and circumstances and the same seldom coincide with each other on salient features.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about eight hours and forty five minutes in lodging the FIR---Effect---Distance between the place of occurrence and police station was only one furlong---Place and time of occurrence and presence of both the sides had not been denied---Complainant, witness, father of the complainant along with other family members were present in the house---Matter was not reported to the police promptly by any of the family members---Such inordinate delay in lodging the FIR would be fatal, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, modification of---Accused were charged for committing murder of nephew of complainant---Motive of the occurrence was that few days prior to the incident hot words were exchanged between the complainant and accused and due to that grudge, all the accused in connivance with each other had committed the murder---Ocular account, in the present case, consisted of the statements of two witnesses including complainant---Claim of both the prosecution witnesses of the ocular account though was that the accused while armed with pistol along with his accomplices had reached there and in pursuance of lalkara raised by his co-accused, the accused made successive fire shots out of which one fire shot hit the deceased---Defence version was that the accused was present in a vacant/barren plot, who did not make fire shot while aiming any person rather one of the aerial fire shot made by him after hitting a hard surface of the wall diverted and resulted into injury at the forehead of the deceased---During the course of investigation, the plea advanced by the accused was found correct---Investigating Officer had stated that it was an accidental occurrence without any intention or pre-meditation of the accused---Record showed that on the application of complainant party, investigation was changed and entrusted to another Investigating Officer, who also opined that the occurrence was result of inadvertent aerial firing---Besides the findings given during the course of successive investigations, it had come on record that soon after the occurrence, father of the accused had accompanied the complainant party while shifting deceased, then injured, to hospital for his medical treatment---Although the presence of both the prosecution witnesses of ocular account at the place of occurrence at the relevant time could not be shattered during the course of trial nor it could be denied that the injury on the person of deceased was result of fire shot made by the accused, however, facts and circumstances of the case showed that the witnesses being close relatives inter se, as well as, the deceased had advanced an exaggerated story about the mode and manner of occurrence---Medical Officer, who conducted post-mortem examination over the dead body of deceased, had supplemented the stamp of injury at the person of deceased---Statement of the Medical Officer had reflected that while conducting post-mortem examination, he recovered foreign body (bullet), which was found de-shaped/deformed---During the course of cross-examination, the Medical Officer had admitted that the bullet became deformed if it hit harder place than itself---Fact led to the conclusion that the fire shot on the person of deceased did not hit him directly rather it diverted to him after hitting some harder place---Facts and circumstances of the case showed that the version narrated by the prosecution witnesses was not the gospel truth while plea advanced by the accused, which lent support from the successive investigations and the statement of the Medical Officer was more plausible---Fact that the accused did not intend to commit murder of the deceased rather as opined during the course of successive investigations, the incident was result of aerial firing could not be denied---Statement of the Medical Officer that the bullet recovered from the dead body was de-shaped, therefore, the unlawful act committed by the accused, which resulted into death of deceased fell within the ambit of qatl-bis-sabab as enshrined in S. 321, P.P.C. punishable under S. 322, P.P.C.---Consequently, conviction and sentences of the accused recorded under S. 302(b), P.P.C., were set aside, and appellant was convicted under S. 323, P.P.C. and sentenced to pay diyat---Appeal was dismissed with said modification.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Effect---Prosecution had alleged that few days prior to the occurrence, a quarrel had taken place between the accused and the complainant, which resulted into the incident---No evidence, whatsoever, was adduced either during the course of investigation or during the course of trial to substantiate the same---Complainant while making statement admitted that there was no witness of the motive part of the case---Said fact ruled out the possibility that the occurrence was result of any pre-meditation.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Accused had led to the recovery of pistol---No crime empty was collected from the place of occurrence, therefore, question of matching report of Forensic Science Agency did not arise---Such recovery was inconsequential.

Aazir Latif Khan for Appellant.

Muhammad Arshad Farooqi, Deputy Prosecutor-General for the State.

Mirza Muhammad Islam for the Complainant (for Petitioner in P.S.L.A. No. 201 of 2016).

2019 P Cr. L J 1010

[Lahore]

Before Sadiq Mahmud Khurram, J

Khawaja MUHAMMAD AHMED---Petitioner

Versus

MUHAMMAD AYYUB and others---Respondents

P.S.L.A. No. 6 of 2016, decided on 25th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 417(2) & (3)---Limitation Act (IX of 1908), Ss. 5 & 29---Acquittal of accused---Special leave to appeal against such acquittal---Condonation of delay---Scope---Complainant was aggrieved of order of acquittal passed by Trial Court in private complaint filed by him---Complainant filed petition of special leave to appeal which was barred by about 8 months---Validity---Application under S. 5 of Limitation Act, 1908, was not maintainable in cases relating to applications made under S. 417(2), seeking grant of special leave to appeal on the order of acquittal in a case instituted upon a complaint---High Court was not empowered to condone any delay in filing applications for grant of special leave to appeal from the order of acquittal passed by Trial Court---Petition for special leave to appeal was dismissed in circumstances.

Muhammad Inayat v. The State 1998 SCMR 1854 and Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151 rel.

Nemo for Petitioner.

2019 P Cr. L J 1039

[Lahore]

Before Farooq Haider, J

TARIQ MAHMOOD---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No. 531-B of 2019, decided on 7th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-L(2), 342 & 34---Shajjah-e-mudihah, hurt, wrongfully confining any person, common intention---Ad-interim pre-arrest bail, confirmation of---Bone deep injury---Scope---Shajja-e-mudihah---Scope---Complainant lodged FIR under Ss. 337-A(ii), 337-L(2) & 34, P.P.C. whereas S. 342, P.P.C. was added during investigation---Validity---Alleged offences, except S. 337-A(ii), P.P.C., were bailable---Regarding S. 337-A(ii), P.P.C., according to Medico Legal Certificate of the injured, said injury was mentioned as bone deep and was referred to the Radiologist for expert opinion---Radiologist report, based upon X-ray , showed no fracture, hence, said injury was finally declared as under 337-A(ii), P.P.C.---No injury had been defined as "bone deep" in the relevant law rather there could be injury where bone was exposed or not exposed and where bone was exposed or not exposed, it was called as "Shajjah-e-Khafifa", however, where bone was exposed but not dislocated said injury was known as "Shajjah-e-Mudihah"---"Shajjah-e-Khafifa" entailed punishment under S. 337-A(i), P.P.C. whereas" Shajjah-e-Mudihah" attracted S. 337-A(ii), P.P.C.---Admittedly, neither any fracture was observed in the injury in question nor bone was exposed---In present case, exposure of bone had not been observed in injury in question, such was to be taken as "Shajjah-e-Khafifah"---Doctor while mentioning the injury same as "bone deep and S. 337-A(ii), P.P.C." had clearly acted against the law and facts, and said act was sufficient to show mala fide on the part of prosecution---Injury, in question, prima facie fell within the definition of "Shajjah-e-Khafifah" which attracted S. 337-A(i), P.P.C. and the same was bailable---All the offences, in the present case, therefore, were bailable---Question of recovery of "sota" was no more important after the lapse of so much time---Pre-arrest bail could not be refused in circumstances---Bail could not be refused in bailable offences merely for the reason of abscondance---Ad-interim pre-arrest bail already granted to the Petitioner was confirmed, in circumstances.

Muhammad Qasim and another v. The State and others PLD 2014 Lah. 555 and Malik Muhammad Aslam v. The State and others 2014 SCMR 1349 ref.

Shahid Mahmood for Petitioner along with Petitioner in person.

Khalid Masood Chaudhary for the Complainant.

2019 P Cr. L J 1055

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ATIF SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 849-B of 2019, decided on 11th January, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 324, 109, 34 & 201---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, causing disappearance of evidence of offence or giving false information to screen offender and possession of unlicensed arms---Pre-arrest bail, refusal of---Allegation against petitioner-police official was that he arrested his friend, co-accused, for possession of unlicensed pistol and kept him confined for a period of twenty one days and during the intervening period co-accused committed the murder in question---Held; investigating officer had opined that co-accused who committed murder was locked up in a case for possession of unlicensed arms, which in all eventualities was a bailable offence but strangely he remained behind bars for twenty one days although he was a man of means and there was no possibility that he could not arrange his surety for his release---Petitioner had close nexus with the co-accused and in that regard statements of number of persons had been recorded---Petitioner was a police officer and as such any act or omission at his part to promote crime was a more heinous offence---Person who had been inducted in the force to curb the crime if acted otherwise should be given an exemplary treatment so that none other could dare and even think to indulge in such like activities---Sufficient incriminating material was available on the record to saddle the petitioner with the responsibility---Petition for pre-arrest bail was dismissed in limine.

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

----S. 498---Pre-arrest bail---Object---Primary object of pre-arrest bail was to save the innocent persons from the apprehension of being arrested for a tainted purpose---Relief of pre-arrest bail was granted only in those matters where it would appear that the registration of case was based on enmity/mala fides or where no offence was shown to have been committed on the very face of record.

Muhammad Azam v. The State 1996 SCMR 71; Muhammad Arshad and another v. The State and another 1996 SCMR 74 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 fol.

Naseer-ud-Din Khan Nayyar for Petitioner.

Mian M. Awais Mazhar, DPG and Saadi, SI with Police Record for the State.

2019 P Cr. L J 1070

[Lahore (Multan Bench)]

Before Farooq Haider, J

Hafiz MUHAMMAD SAIF ULLAH---Petitioner

Versus

DSP and others---Respondents

Writ Petition No. 17142 of 2018, decided on 20th November, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 107, 150 & 151---Constitution of Pakistan, Art. 199---Security for keeping peace---Information of design to commit cognizable offence---Arrest to prevent commission of cognizable offence---Constitutional petition---Maintainability---Scope---Petitioner was aggrieved of proceedings conducted by police under Ss. 107 & 150, Cr.P.C.---Validity---Police being duty bound to act under Ss. 107, 150 or 151, Cr.P.C. for the purpose of keeping security, peace and also for taking measures for preventing commission of offence, proceedings conducted by police were not without jurisdiction---Petitioner could contest the case before Area Magistrate in case of any grievance---Constitutional petition was not maintainable.

2019 P Cr. L J 1086

[Lahore]

Before Ch. Mushtaq Ahmad and Ch. Abdul Aziz, JJ

MUHAMMAD DARVAISH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 509-J and Murder Reference No. 315 of 2016, decided on 8th April, 2019.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Benefit of doubt---Interested witness---Chance witness---Prosecution case was that accused persons killed two persons and injured two others---Occurrence was witnessed by four persons out of whom two witnesses appeared during trial, whereas remaining two were given-up---Both given-up witnesses had received firearm injuries during the occurrence, whereas the other two witnesses had escaped unhurt---Witnesses who had appeared during trial were related to the deceased being father and maternal uncle---Eye witnesses had extremely strained relations with the accused persons---Complainant was inimically placed against appellants and such aspect made him a partisan or interested witness---Crime scene was situated at a distance of 3 kilometers from the place of abode of both the eye-witnesses---Complainant admitted during cross-examination that the second witness and his family had arrived at his house to celebrate the function of his daughter's marriage which continued till late night---Presence of both witnesses at a distance of 3 kilometers and that too in a cattle shed for guarding animals appeared to be a laboured story to justify their presence at place of occurrence---Acclaimed presence of both eye-witnesses was not out of their routine, rather was a sheer coincidence---Both eye-witnesses remained unhurt in the occurrence, wherein two persons had lost their lives and other two were injured by the common enemies---Eye-witnesses, in the absence of confidence inspiring explanation, were held to be chance witnesses and their testimonies were termed as suspect evidence---Said factors gave rise to a reasonable doubt, benefit of which could not be withheld from the appellants---High Court acquitted the appellants of the charge and set aside their conviction and sentence, in circumstances---Murder reference was answered in the negative.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

(b) Criminal trial---

----Partisan witness---Interested witness---Credence---Corroboration of testimonies of such witnesses---Principle---Testimony of a witness cannot be discredited merely on account of his relationship with deceased, however, if he is found locked in some rivalry or enmity of a long or short duration, personal vengeance or grudge arising out of some financial, political or severe family rift with the accused, he attains the status of 'interested or partisan witness'---Out of human frailty, it is expected, that a witness entangled in abhorrence or grudge affair with his adversaries can tell a lie to satisfy his grouse and can even go to the extent of implicating innocent persons in a crime, hence to attain credence, his testimony is required to be appraised with extreme circumspection and for that, matter is to be stringently evaluated on the touchstone of strong corroboration.

Umar Hayat and 3 others v. The State 1997 SCMR 1076 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses---Inference---Presence of eye-witnesses at the spot is not to be inferred rather to be proved by prosecution beyond scintilla of doubt.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Night occurrence---Source of light---Occurrence took place on a dark pitched and foggy night and the witnesses claimed to have captured the visuals of occurrence in the light of a lamp, which was not secured during investigation---Investigating Officer conceded that he had not shown source of light in the site-plan as it was not pointed out by the eye-witnesses---Omission to prove presence of light at the spot was of immense importance when seen in the context that in the night it was fog all around---Failure to prove source of light in a night time occurrence was always considered fatal for prosecution case as it gave room to the possibility of false implication through mistaken identification---High Court acquitted the appellants of the charge, in circumstances, and set aside their convictions and sentences.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Night occurrence---Source of light---Failure to prove source of light in the night occurrence is considered fatal for prosecution case as it gives room to the possibility of mistaken identification.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Ocular and medical account---Improvements made by witness---Eye-witnesses burdened accused persons with the role of causing one firearm injury each on the abdomen of deceased---Post-mortem report revealed that the deceased had received only a single firearm injury---Eye-witness had saddled other accused persons with the role of inflicting injuries with .12 bore gun on the abdomen of second deceased, whereas according to autopsy report, only a single injury with blackening around its margins was noticed by the doctor on the given locale---Eye-witnesses, in order to address the anomaly, made improvements in private complaint as well as during trial and described the locale of injury caused by accused on the left thigh of deceased---Accused person was armed with .12 bore gun, however, the injury on thigh of deceased was found to be measuring .5 x .5 cm with mild blackening---Cartridge of .12 bore gun comprised of multiple pellets and if fired from a close distance, it ingressed in human body with an injury of much larger dimension---Said shortcomings led to an anomaly between medical and ocular evidence which could legitimately be resolved in favour of defence---High Court observed that change in version of eye-witnesses was not an outcome of frail human memory, rather was deliberately made with a nefarious design of bringing their testimony in corroboration with medical evidence---High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

(g) Criminal trial---

----Eye-witness---Improvement in testimony---Scope---Purity of a testimony leads the court to pronounce a guilty verdict and if such purity is polluted through dishonest improvements the eye-witness loses his credibility rendering him not worthy of any credence.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Acquittal of some of the accused---Prosecution, along with appellants had implicated two other persons in the case who were assigned role of active participation in the crime---One of the accused persons was saddled with accusation of inflicting firearm injury on the elbow of deceased, whereas the other was ascribed a firearm injury to the injured witness---Said accused persons were acquitted by the Trial Court and no appeal was filed against such decision---Safe conclusion could be drawn from the acquittal of accused persons that the deposition of both the witnesses was not found to be credible by the court and they were disbelieved---High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

(i) Criminal trial---

----Witness---Credibility of a witness is not divisible as partially reliable and partially unreliable.

Criminal Miscellaneous Application No. 200 of 2018 in Criminal Appeal No. 238-L of 2013 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Motive not established---Motive was canvassed as enmity arising out of murder of the brother of accused persons---Validity---Altogether different set of assailants were charged for murder of accused persons' brother---Deceased was although found involved in the murder during investigation and was arrested, but he was bailed out with the consent of complainant party---Present occurrence took place after approximately 19 months of post-arrest bail of deceased and during that period no untoward incident took place between the parties---Said aspect was sufficient to expose the veracity of motive projected by prosecution---High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Recovery of arms---Recovery of empties not shown in statement of witness recorded under S. 161, Cr.P.C.---Forensic Science Agency reported that guns recovered from accused persons were found wedded with crime empties secured from the spot---Prosecution, however, failed to prove safe custody and transmission of crime empties to Forensic Science Agency---No sanctity could be attached to the report---Prosecution was bound to prove safe custody and onward transmission of recovered weapon to Forensic Science Agency for comparison---Investigating officer admitted during cross-examination that statements recorded under S. 161, Cr.P.C. mentioned only two parcels contained blood-stained earth and there was no mention of keeping any parcel containing crime empties---High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

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

----Arts. 3 & 59---Criminal Procedure Code (V of 1898), S. 543---Deaf and dumb witness, evidence of---Help of expert---Scope---Evidence of deaf and dumb witness could be recorded through necessary implication of Arts. 3 & 59 of Qanun-e-Shahadat, 1984 read with S. 543, Cr.P.C.---Article 3 of Qanun-e-Shahadat, 1984 postulated that all the witnesses were competent to testify, unless the court considered that they were prevented from understanding the questions put to them or giving their rational answers---Person could be held incompetent to testify only if the court arrived at a definite conclusion that he could neither understand a question nor was in position to give its rational answer.

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

----Ss. 302(b), 324, 148 & 149---Qanun-e-Shahadat (10 of 1984), Arts. 3 & 59---Criminal Procedure Code (V of 1898), Ss. 540 & 543---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Deaf and dumb witness, evidence of---Principles---Help of expert---Prerogative of prosecution to produce or withhold a witness---Exception---Duty of court to summon material witness---Scope---Prosecution case was that accused persons killed two persons and injured two others---Occurrence was witnessed by four persons out of whom two witnesses appeared during trial, whereas remaining two were given-up---Both given-up witnesses had received firearm injuries during the occurrence, whereas the other two witnesses had escaped unhurt---First injured witness was given up on account of being deaf and dumb---First witness was an adult, living active life and had so much maturity of understanding and conversing with others that he was picked up by the complainant to look after his cattle shed---Record of the case was silent regarding satisfaction of court in terms of Art. 3 of Qanun-e-Shahadat, 1984---Trial Court, under Art. 59 of Qanun-e-Shahadat, 1984,could have called for help of an expert having requisite expertise in specific field and through S. 543, Cr.P.C. could have recorded the evidence of deaf and dumb witness by using such expert as an interpreter---Services of an expert from some institute of deaf and dumb persons could conveniently have been procured but no effort was made in that regard---Court was otherwise competent to examine the said witness through some of his relative, well conversant with his signs and gestures after administering oath to him---Nothing was brought on record to the effect that said witness was an illiterate person, otherwise he could have been examined even in writing---Evidence of said witness could not have been discarded in the manner adopted by Trial Court---Second injured witness besides getting injured was also brother of deceased, therefore, his evidence was essentially required for just decision of the case; shortly after the occurrence he put forth his version of crime through an application to police and saddled the responsibility of committing the crime upon shoulders of other four persons, including the first injured witness---Second injured witness also filed a petition under S. 22-A, Cr.P.C. and it was even admitted by the Investigating Officer---Production or withholding a witness was said to be prerogative of prosecution yet such rule was not invariably applicable in all cases---Complainant, by depriving the second injured witness to appear in the witness box, had an absolute control over the case---Even though second injured witness was not cited as witness in the private complaint yet the Trial Court was required to examine him as a court witness under S. 540, Cr.P.C.---High Court acquitted the appellants of the charge, in circumstances and set aside their convictions and sentences.

Kadungoth Alavi v. State of Kerala 1982 Cri.LJ 94; Ah Soi v. King Emperor AIR 1926 Calcutta 922; Kumbhar Musa Alib v. State of Gujarat AIR 1966 101; Rameshwar v. The State of Rajasthan AIR 1952 Supreme Court 54; M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others AIR 1954 Supreme Court 300 and Allah Noor v. The State 2008 PCr.LJ 1666 ref.

The State of Rajasthan v. Darshan Singh alias Darshan Lal 2012 AIR (SCW) 3036; Khairdi Khan and others v. The Crown PLD 1953 Federal Court 223 and Muhammad Waseem alias Kalu v. The State 2006 PCr.LJ 364 rel.

Sardar Muhammad Latif Khan Khosa, Mian Muhammad Ayyaz Nasir, Rai Nasir Ali Kharal and Saiqa Javaid for Appellants.

Ch. Muhammad Riaz Ahmad, Tasawar Hussain Sahoo and Makhdoom Ali for the Complainant.

Hamayoun Aslam, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1123

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

Mian MUHAMMAD SHAHBAZ SHARIF---Petitioner

Versus

FEDERATION OF PAKISTAN and 4 others---Respondents

W.P. No. 12312 of 2019, decided on 26th March, 2019.

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

----S. 2--- Restriction on traveling abroad--- Principle--- Federal Government can prohibit a person from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is holding valid travel documents---Incumbent upon Federal Government that before exercising such power it must apply its independent mind fairly and justifiably to facts of case---Such order cannot be passed in vacuum or mechanical manner as it tends to curtail liberty of a person which resultantly tantamount to abridge his Fundamental Right guaranteed under the Constitution.

The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856; Pakistan Muslim League (N) through Kh. Asif and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642 and Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186 rel.

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

----Ss. 2 & 5---National Accountability Ordinance (XVIII of 1999), S. 18(c)---Exit Control List---Inquiry, pendency of---Petitioner was aggrieved of placing his name on Exit Control List merely due to pendency of inquiry against him---Validity---Mere pendency of an inquiry with National Accountability Bureau did not provide sufficient material or justification for keeping name of petitioner in Exit Control List---No plausible reasons were assigned by authorities while placing name of petitioner on Exit Control List---High Court set aside order in question as same was passed in haste and in mechanical manner on instructions of National Accountability Bureau---Constitutional petition was allowed in circumstances.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court--- Scope---Availability of efficacious alternate remedy---Effect.

Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Tayyab Hussain Rizvi and others v. FOP and others PLD 2015 Lah. 353; Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135; Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others PLD 2008 Lah. 341; Muhammad Khyzer Yousuf Dada v. Federation of Pakistan through Secretary, Ministry of Interior and 5 others PLD 2011 Kar. 546 and Javed Khan v. Pakistan through Secretary Interior and 6 others 2017 YLR 2109 rel.

Azam Nazeer Tarar and Muhammad Amjad Pervaiz for Petitioner.

Mian Tariq Shafique Bhandara, Deputy Attorney General for Pakistan with Zia Islam, Deputy Director Law, FIA, Punjab, Lahore for Respondents.

Syed Faisal Raza Bukhari, Special Prosecutor for NAB.

2019 P Cr. L J 1156

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD ASIF and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 360 of 2015, decided on 14th March, 2019.

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

----Ss. 302 & 34---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Blind murder---Circumstantial evidence---Joint extra-judicial confession--- Motive not direct--- Scope---Prosecution case against accused persons was that they committed murder of brother of complainant in District 'T' after taking him from District 'L' under the garb of effecting compromise between him and his wife---Prosecution relied on the testimony of complainant and witness of last seen in whose presence accused persons took the deceased away---Both the said witnesses did not state before police whether the deceased was annoyed with his wife or the accused persons had any influence upon the parents of deceased's wife---Evidence of last seen was not sufficient to sustain charge of murder, as further evidence was required to link accused persons with crime, such as incriminating recoveries at the stance of accused persons, strong motive or proximity of time and space---Next piece of evidence available with the prosecution was in the shape of extra-judicial confession made by accused persons before two witnesses---Appellants had made joint extra-judicial confession before the said witnesses which was not admissible in evidence---Prosecution did not adduce any evidence to show that accused persons were motivated by any particular event which compelled them to make confession---Motive behind the occurrence was stated to be the run-away marriage of one of the accused person's sister with deceased's brother---Accused persons had no direct motive against the deceased---Report of Forensic Science Agency was negative with regard to .44 bore rifle allegedly recovered from the possession of one of the accused persons---Medical evidence did not connect accused persons in the crime in any manner---Circumstantial evidence did not connect each other to make a chain which was necessary in such-like cases---Conviction and sentence awarded by Trial Court was set aside and accused persons were acquitted of the charge, in circumstances

Rehmat alias Rehman alias Waryam alias Badsha v. The State PLD 1977 SC 515; Abid v. The State PLD 2018 SC 813; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Sarfraz Khan v. State and 2 others 1996 SCMR 188 and Imran alias Dully and another v. The State and others 2015 SCMR 155 ref.

(b) Criminal trial---

----Circumstantial evidence--- Scope--- Conviction can be recorded if on the facts proved, no hypothesis consistent with the innocence of the accused can be suggested---However, if facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence.

A.D. Naseem, Muhammad Asif and Malik Muhammad Nawaz Kammal for Appellants.

Muhammad Nauman for the Complainant.

Tariq Javed, District Public Prosecutor with Javed, ASI for the State.

2019 P Cr. L J 1172

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD AMEEN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Revision No. 205741 of 2018, decided on 11th February, 2019.

Police Order (22 of 2002)---

----Art.155(2)---Criminal Procedure Code (V of 1898), Ss. 200 & 204---Private complaint---Defective investigation---Proceedings against police officials---Scope---Petitioners were police officials who were aggrieved of process issued by Trial court in a private complaint on allegation of defective investigation in a murder case---Validity---Prosecution could be initiated against police officers on basis of defective investigation on report in writing by an officer authorized in such behalf under law---Private complaint filed by complainant was not maintainable against petitioners as they were police officials---Two venues were available to complainant, firstly, if Trial Court had come to conclusion that investigating officer had interrogated matter with mala fide intention or with some ulterior motive during course of investigation then it could order for prosecution under Art. 155 of Police Order, 2002; secondly, complainant could move an application to high-ups of police department by availing remedy available under law---High Court set aside complaint filed against petitioners as same was not maintainable---Revision was allowed accordingly.

Haji Muhammad Qasim and others v. Muhammad Jahangir Khan and another 2007 YLR 3209 rel.

Farrukh Gulzar Awan for Petitioners.

Mian Muhammad Umer Shahzad for Respondent No.2.

Tariq Javed, District Public Prosecutor for the State.

2019 P Cr. L J 1188

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

KHALID HAMEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 328 and Murder Reference No. 26 of 2015, decided on 5th November, 2018.

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

----Ss. 302(b), 364-A & 376---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Appreciation of evidence---Last-seen evidence---Accused was charged for abducting the daughter of the complainant aged 6/7 years, committing rape and strangulating her to death---Accused was arrested while he was going towards the graveyard having a sack on his shoulder and from search of which dead body of victim was recovered---Prosecution case hinged upon circumstantial evidence, which was in the nature of last seen evidence furnished by two witnesses---According to the deposition of witness of last seen, he went to the place of abode of accused on 12.11.2014 at about 09:00 p.m. and had seen him in the company of a six years old girl---Admittedly, said witness had neither mentioned the name of deceased nor given her physical or facial features in his examination-in-chief; however, he had identified photograph to be of the deceased, when confronted with it during cross-examination---Other witness of last seen, who was having no blood relation with the deceased but hailed from the same vicinity, also appeared in the dock with the claim of having witnessed the deceased in the company of accused on 11.11.2014 at about 05:00 p.m. and stood firm with the stance---Testimony of both the witnesses of last seen showed that the two witnesses had no axe to grind with the accused through falsely implicating him in the case---Evidence of last seen was in consonance with the requirements of proximity of time and distance---Circumstances established that prosecution had successfully proved its case on the basis of circumstantial evidence comprising of last seen, apprehending of accused along with dead body of deceased, nexus between the accused and the room where deceased met her death as well as medical evidence---Appeal was dismissed.

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

----Ss. 302(b), 364-A & 376---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Delay of about two days in lodging of FIR---Effect---FIR was lodged with an unexplained delay of about two days---Scrutiny of record revealed that initially the father/complainant made personal efforts to locate his missing daughter but upon failure, he approached the SHO for registration of FIR---Delay, in cases of abduction was apt to happen due to indifferent attitude of police and optimistic approach of the families.

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

----S. 302(b)---Qatl-i-amd---Last-seen evidence---Scope---Last seen evidence stands for an event in which the slain person was seen last time alive in the company of accused---Evidence of last seen in itself though was generally regarded as a weak type in nature but there was no legal impediment to make it basis for awarding conviction, if it was corroborated from some other source of unimpeachable character---Evidence of last seen qualified for acceptance, if it fit into the criteria of proximity of time and distance---Lesser was the duration and distance between the event of last seen and homicidal death of the victim, stronger was such evidence.

Rehmat alias Rhaman alias Waryam alias Badshah v. The State PLD 1977 SC 515 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

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

----Ss. 302(b), 364-A & 376---Criminal Procedure Code (V of 1898), S. 148---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Appreciation of evidence---Dead body of deceased was recovered from the possession of accused---Effect---Circumstances that accused was found in possession of victim's corpse could legitimately be considered as an admissible incriminating circumstance, relevant fact in issue---Record transpired that immediately after his arrest accused in pursuance of a disclosure, led the police to his residential room and got recovered shoes and shawl/chadar belonging to the deceased---Blood through cotton was secured from the floor of same room by Investigating Officer, which as per DNA report was proved to be of the deceased---Such circumstance had gone long way in proving that deceased met her homicidal death in the room where none other than the accused---Argument that since the belongings of deceased and blood from the floor were secured without association of any resident of the vicinity, being in violation of S. 103, Cr.P.C. held no ground---Such argument ran contrary to the mandate of Art. 40 of Qanun-e-Shahadat, 1984.

Hidayatullah and 7 others v. The State and others 1994 PCr.LJ 20; Gul Muhammad v. The State 2011 SCMR 670; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----Ss. 302(b), 364-A & 376---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Appreciation of evidence---Medical evidence---Scope---Besides explaining the cause of death as asphyxia by strangulation, medical evidence also described the duration between the death and postmortem as approximately two to three hours---Medical Officer also deposed that before strangulating deceased to death, she was subjected to rape, an act bereft of any morality and at the ebb of extreme inhumanity---DNA examination of seminal material taken from the vaginal swabs and clothes of deceased though did not match with the accused's, however, it could not be resolved adversely to the case of prosecution---Accused must have resorted to safe sex by adopting some precautionary measures for not leaving behind stains of his semen---Medical evidence, in circumstances, supported the prosecution case.

Muhammad Khaliq-uz-Zaman and Zuhaib Ashraf Mughal for Appellant.

Raja Fakhar Inayat for the Complainant.

Umer Hayat Gondal, Additional Prosecutor-General for the State.

2019 P Cr. L J 1207

[Lahore]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

FARZAND ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 251/J of 2012, decided on 1st November, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Delay of about more than nine hours in lodging the FIR---Effect---Prosecution alleged that 13-kilograms and 910-grams heroin and 150-grams opium along with packing and one T.T. pistol with two live bullets were recovered from the accused by the Rangers Force---Incident report was prepared and thereafter FIR was registered on the basis of said report---Record showed that occurrence had allegedly taken place 7.30 a.m. but FIR was lodged at 5.10 p.m., for which, no explanation was available---Incident report was silent about the time when it was sent to police station---No police proceedings were available on the incident report about its receipt at the police station and recording of FIR on the basis of the same---Witness had deposed that incident report was prepared at the post at 7.30/8.00 a.m. which was 2-kilometers away from the alleged place of recovery---Said deposition had smashed the case of prosecution and established that neither any occurrence took place at 7.30 a.m. nor any incident report was prepared at the stated time and place---Other witness had also stated that incident report was prepared at the post and not at the place of occurrence---Said witness also deposed that his statement was recorded at 7.30 a.m. after fifteen minutes of preparing the incident report, meaning thereby that the alleged occurrence had not taken place at 7.30 a.m. as claimed by the prosecution---No legal sanctity could be attached to such incident report.

Abdul Basit v. The State and others 2018 SCMR 1425 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that Rangers Force, on patrolling duty, had seen three suspects and asked them to stop, but they started firing upon Rangers party with T.T. pistols---Patrolling party encircled and arrested the present accused and recovered 13-kilograms and 910-grams heroin and 150-grams opium along with packing and one T.T. pistol with two live bullets---Incident report was prepared and thereafter FIR was registered on the basis of said report---Recovery memo showed that contrabands were recovered from present accused, whereas incident report showed that said contrabands along with T.T. pistol were recovered from the accused persons---Allegedly, recovered case property was not sealed at the spot---No samples were taken out from the allegedly recovered heroin and opium at the spot---Parcel of such samples was not prepared---Incident report did not show that allegedly recovered heroin and opium were weighed at the spot---Complainant had deposed that he handed over incident report and recovery memo to Police Inspector at 10.00 a.m. at the place of occurrence but said Police Inspector had refused to have received the same in his statement before the court---Allegedly, three suspects including accused made firing upon the Rangers party, but no crime empty shell of any firearm weapon could be found from the place of occurrence by the Rangers or Investigating Officer---Fact remained that alleged place of occurrence was in total supervision and control of Rangers Force---Prosecution witness had introduced dishonest improvement in his statement by mentioning that complainant separated ten grams for sample from each packet of allegedly recovered narcotics and then he sealed the narcotics, whereas, no such fact was mentioned in the recovery memo and even complainant did not depose so---Official witness had stated that his statement was recorded by complainant at 7.30 a.m. and prior to that recovery memo and incident report had already been prepared---Such circumstances suggested that no occurrence had taken place at 7.30 a.m.---Complainant did not admit writing of statement of said witness---Police Officer had deposed that he visited the place of occurrence on the next day and prepared site plan but in said site plan Police Inspector had been shown as its scribe---Police Officer had stated that on the third day of alleged occurrence accused was brought to the police station and handed over to him and then he was arrested---Record was silent as to where accused remained for three days---Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of recovered substance---Prosecution case was that case property was recovered on 25.8.2009 but statedly deposited in warehouse on 29.8.2009---Fourteen samples of heroin weighing ten grams each and one sample of opium weighing ten grams were sent to the office of Chemical Examiner through Inspector Rangers on 28.8.2009---Said facts showed that neither case property nor any sample was received in the police station---Similarly, the alleged samples were never sent by the Investigating Officer of the case to the Office of Chemical Examiner---Record was silent as to who kept samples in the safe custody and then handed over the same to Police Inspector for depositing the same in the Office of Chemical Examiner---Incharge of the warehouse had stated that case property was deposited by Police Inspector in the warehouse on 28.8.2009---Said Police Inspector had deposed that he did so on 29.8.2009---Circumstances established that safe custody of the case property and samples and then onward transmission of said samples to the Office of Chemical Examiner could not be proved by the prosecution.

Amjad Ali v. The State 2012 SCMR 577 rel.

Ms. Malka Saba for Appellant.

Muhammad Arshad Farooqi, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1221

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

NIAZ AHMED alias NAZO and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 279, 359 of 2013/BWP and Murder Reference No. 32 of 2013/BWP, decided on 26th September, 2018.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- FIR was lodged promptly---Record showed that occurrence took place at about 09:00 a.m. in an area situated at a distance of 8-kilometeres from Police Station---Crime was reported by complainant through written application presented before Police Officer in the Police Station at about 11:00 a.m., which shortly thereafter was transcribed into First Information Report---Complainant was though a graduate but the complaint was written by a person not known to him---Complainant remained associated with the case during investigation as well as trial, however, the veil was not lifted from the identity of the author of complaint---Promptness in lodging FIR was inconsequential, in circumstances.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with co-accused persons launched an attack at the house of complainant over a land dispute---Accused committed murder of nephews of the complainant, while giving a hoe blow on the neck of one of the deceased and cut his throat, who succumbed to the injuries at the spot, whereas the other was murdered by firing---Ocular account was furnished by two witnesses including complainant---Crime report showed that two persons were done to death during the occurrence and as many as fifteen persons were burdened with the blame of having actively participated in the commission of crime; except the accused, others were acquitted by the Trial Court---Admittedly, all the assailants were from one brotherhood, closely related to each other---Said aspect gave a strong indication that the case was that of wider net---Record showed that the set of evidence produced against acquitted fourteen accused was almost the same as adduced against the accused-appellant---Two eye-witnesses obsessively burdened some of the accused with the role of causing firearm injuries on the person of deceased and saddled others with inflicting blunt and sharp traumas on the head of other deceased---Testimony of said witnesses was not considered worth reliance for awarding conviction to accused persons---Eye-witness account of the occurrence showed that one deceased remained standing like an oak tree even after the receipt of nine firearm injuries and fell on the ground after further injuries inflicted by unknown persons; such narration did not appear to be a remote possibility---Spot inspection was conducted shortly after the occurrence and only three empties of .30 bore were recovered from the spot which raised an eyebrow about the prosecution version wherein the assailants were shown armed with weapons like .44 bore, .222 bore and .12 bore---Prosecution had failed to prove its case beyond suspicion, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Zaman v. The State 2014 SCMR 749 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---One of the deceased, died after receiving only the firearm injuries; eye-witnesses remained consistent while deposing so and even during cross-examination stated beyond any ambiguity that said deceased received no blunt trauma---Detail of injuries noticed by Medical Officer, during post-mortem examination of deceased transpired that some of injuries were caused through blunt weapons---Medical Officer had reported that four injuries were caused by blunt weapons---If the occurrence was witnessed by eye-witnesses, they must there mentioned the said injuries---Neither in the crime report nor in their depositions before the court, any accused was alleged to be armed with any club, rod stick, etc---Said fact gained more importance when seen in the context that the same set of witnesses ascribed as many as nine firearm injuries with their locales to respective assailants which otherwise was not humanly possible as an eye could not catch the velocity of a bullet---Such microscopic narration of occurrence in which volley of bullets was being fired by numerous persons was not even a remote possibility---Firearm injuries alleged to have been caused by co-accused, since acquitted, on the right side of the neck, ear and mouth of deceased were not found present during autopsy---Acquittal of said co-accused was challenged in appeal, however, it was withdrawn to their extent---Findings of Trial Court regarding the acquittal of two accused attained finality which fact adversely reflected upon the presence and credibility of the eye-witnesses and went long way in demonstrating that the ocular account ran contrary to the medical evidence.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Motive was not proved---Effect---Complainant had alleged that incident took place in the wake of a murder enmity which started in 1985 and rejuvenated due to a dispute arising out of 14-acres of land---Record revealed that one deceased was figuring in neither of the afore-mentioned two disputes as at the time of murder of 1985, deceased was a minor and was in no manner connected with the same---Nothing had emerged from the prosecution evidence that deceased had any stake in the ongoing land dispute---Narration of occurrence provided by the eye-witnesses was reviewed from which it divulged that deceased was taken as a primary target of that murderous assault whereas, other deceased fell prey to the aggression of assailants only when he tried to intervene---Brutality in which deceased was eliminated, it could be inferred, that the murderers were having venom against him---Circumstances suggested that complainant was a central figure in the 1985 occurrence and was awarded guilty verdict by the Trial Court---Complainant underwent an imprisonment for life and was released from Jail in the year 1997---Unhurt survival of complainant gave rise to certain queries regarding prosecution case---Motive behind the occurrence had not been proved by the prosecution, in circumstances.

(e) Criminal trial---

----Motive---Scope---Motive was double edged weapon; on the one hand it was taken as a driving force behind the commission of crime, on the other, it provided a reason for false implication.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Recovery of Kassi was alleged to have been effected from accused-appellant---Report of Serologist showed that the Kassi was found to be stained with human blood, however, for convincing reasons, it was not a sufficient corroboratory material in aid of prosecution case---Occurrence took place on 27.11.2009, whereas the Kassi was recovered on 13.01.2010 and forwarded to Chemical Examiner on 10.2.2010---Scrapping taken from Kassi was examined by Serologist on 06.07.2010 i.e, after about 7/8 months and opined the presence of human blood thereon which was not possible as the blood was likely to disintegrate during such period---Recovery of weapon, in circumstances, could not be relied.

Muhammad Arif alias Mahi and others v. the State and another 2007 YLR 1115 and Faisal Mehmood v. The State 2016 SCMR 2138 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt ought to be extended to the accused.

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

----S. 417(2-A)---Appeal against acquittal---Scope---If a court of competent jurisdiction passed the judgment of acquittal on the basis of cogent grounds, the same was not to be disturbed in a mechanical manner---To set aside the judgment of acquittal, it is to be proved that the acquittal was arbitrary, fanciful, perverse and contrary to record---Accused on the judgment of acquittal acquired a verdict of innocence, hence it was to be disturbed in exceptional and extraordinary circumstances.

Mian Muhammad Tayyab Wattoo for Appellants.

Rehan Zafar for the Complainant.

Asghar Ali Gill, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1241

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

Ch. ABID MEHMOOD---Appellant

Versus

Mirza ZAFAR JAVED and others---Respondents

Criminal Appeal No. 1041 and Criminal Miscellaneous No. 1-M of 2018, heard on 5th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 417(2A) & 493---Appeal against acquittal---Power of Magistrate to acquit accused at any stage---Public Prosecutor to conduct prosecution---Delay in filing appeal against acquittal by Trial Court---Condonation of delay---Hearing on application under S. 249-A, Cr.P.C. without notice to complainant---Effect---Appellant assailed judgment of Trial Court whereby it acquitted respondents while allowing application under S. 249-A, Cr.P.C.---Appeal against acquittal was barred by time and appellant sought condonation of delay on the sole ground that no notice to the appellant or his witnesses was served and as such he remained unaware of passing of impugned judgment---Validity---Trial Court, after hearing Public Prosecutor as well as counsel for accused, had pronounced the judgment, hence the procedure prescribed under S. 249-A, Cr.P.C. was duly complied with---Under S. 493, Cr.P.C., it was only Public Prosecutor who had to conduct the prosecution and if there was any private counsel, engaged by the complainant, he was required to act under the instructions of the Public Prosecutor---Stance of the appellant that he should have been given notice was of no legal value---No reason, cause or justification to condone the delay was made out---Appeal, being barred by time, was dismissed.

Rizwan Haider Afzal and Malik Mushtaq Ahmad for Appellant.

Afzal Khan Jadoon for Respondents Nos. 1 to 3.

2019 P Cr. L J 1251

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD ASAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 2046 of 2014, decided on 3rd April, 2019.

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

----Ss. 302(b) & 377---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd and unnatural offence---Appreciation of evidence---Benefit of doubt---Delayed post-mortem---Chance witnesses---Unnatural conduct of witnesses---Withholding of material witness---Presumption---Scope---Accused was charged for committing unnatural offence and murder by making a brick blow on the head of deceased---Incident took place at 6:00 pm on 25/10/2012 in a deserted house---Post-mortem examination was conducted on the next day at 2:30 p.m.---Doctor stated that time between death and post-mortem examination was 20/12 hours and that he had conducted post-mortem on the dead body when he received the police papers---Witnesses produced by prosecution were chance witnesses as the house of complainant was situated at a distance of 1½ or 2 kms from the place of occurrence and other two witnesses were not residents of the locality---Eye-witnesses claimed to have been attracted to the place of occurrence upon hue and cry of the deceased but no house or shop was situated anywhere close to the said deserted house---Eye-witnesses claimed that after the incident they held the deceased in their hands and that their hands and clothes were stained with blood but did not produce their clothes to the Investigating Officer---Second eye-witness stated during cross-examination that first eye-witness was complainant's son-in-law and that he was separately residing in the same locality, whereas first eye-witness claimed that he had no relationship with the complainant and that he was just complainant's neighbour; therefore, no implicit reliance could be placed on the evidence of first eye-witness---Investigating Officer admitted that in the statements recorded under S. 161, Cr.P.C., first eye-witness and given-up witness did not mention that sodomy was committed with the deceased---Occurrence had taken place during night and although the prosecution witnesses claimed that they had seen the occurrence with search/emergency light yet admittedly no such search/emergency light was seized by the Investigating Officer during the course of investigation---Witnesses could not have seen the occurrence in dark hours of the night from a distance of 55 feet without any source of light---Conduct of eye-witnesses was irrational as neither they tried to catch the accused nor chased him when he was not armed with any firearm weapon and was younger than witnesses---Daughter of complainant who had come along with the deceased to provide lunch to the complainant on a donkey cart was not produced---Time of death as per complainant was 8:40 p.m. but the same was recorded in the inquest report to be 6:00 p.m.---Prosecution was unable to prove its case against the appellant, in circumstances---Appeal was allowed, in circumstances.

Irshad Ahmed v. The State 2011 SCMR 1190; Nazir Ahmad v. The State 2018 SCMR 787; Haroon Shafique v. The State and others 2018 SCMR 2118 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302(b) & 377---Qatl-i-amd and unnatural offence---Appreciation of evidence---Recovery of weapon---Recovery from public place---Absence of report of Forensic Science Laboratory---Effect---Recovery of weapon of offence i.e. brick at the instance of accused from a deserted house was not sealed by police and remained accessible to all and sundry---Such recovery was not confidence inspiring---No such weapon of offence was shown in the site-plan nor the same was pointed out by the prosecution witnesses when the police officials visited the place of occurrence---No report of Forensic Science Laboratory was provided to establish that the brick was stained with human blood---Prosecution could not press the recovery of brick into service as independent corroboration.

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

----Art. 129(g)---Withholding best evidence---Scope---Where a party withholds best piece of evidence then it can fairly be presumed that the party had some sinister motive behind the same.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Haroon Shafique v. The State and others 2018 SCMR 2118 ref.

(d) Criminal trial---

----Evidence---Corroboration---Scope---Corroborative evidence is meant to test the veracity of ocular evidence.

Riaz Ahmed's case 2010 SCMR 846 rel.

(e) Criminal trial---

----Benefit of doubt---While giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubt---Where a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to its benefit, not as a matter of grace and concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Zaman v. The State 2014 SCMR 749; Muhammad Akram v. The State 2009 SCMR 230; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Barrister Danyal Ijaz Chadhar for Appellant.

Muhammad Nauman Siddique, Deputy Prosecutor-General along with Zulfiqar Ali, ASI for the State.

Inam Ullah Khan for the Complainant.

2019 P Cr. L J 1264

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz and Anwaarul Haq Pannun, JJ

NASARULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 113-J, 264 and Murder Reference No. 17 of 2015/BWP, decided on 30th January, 2019.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of brother of complainant---Motive behind the occurrence statedly was that one year prior to the occurrence deceased had chopped the nose of accused-appellant---Ocular account of the occurrence was furnished by the brother of deceased and his paternal uncle---Both the eye-witnesses had their place of abode at a distance of 8-kilometers from the crime scene---Neither the brother of deceased nor his uncle had offered any explanation in their examination-in-chief for their acclaimed presence at the spot; it could be gathered well from their deposition that they along with deceased arrived at the place of occurrence not in accordance with their daily routine which made them chance witnesses---Record transpired that the Investigating Officer reached the place of occurrence at about 10:00 a.m. and he dispatched the dead body to mortuary at about 10:30 a.m. in the company of some civilians---Conversely, complainant had narrated altogether a different detail regarding the time of shifting the dead body to the hospital---Other eye-witness deposed that dead body was shifted to hospital by police without accompanying private persons---No doubt such conflict was related to a post-occurrence event, however, it reflected the unnatural conduct of the witnesses demonstrating their absence from the spot---Being in close relationship, said eye-witnesses should have accompanied the dead body to hospital, more importantly when the spot inspection had already come to an end---No blood stains were found on the clothes of eye-witnesses as evident from the statement of investigating Officer---Eye-witness was statedly who was present at the spot ten minutes before the occurrence, never warned the deceased in that respect---Probably, in order to address said anomaly, eye-witness had stated that there was a sugarcane crop adjacent to the road and the perpetrators were in ambush therein---Record showed that no sugarcane crop was found mentioned in the site plan---Circumstances established that time of occurrence projected by the eyewitnesses was not free from doubt---Said aspect coupled with the fact that complainant had suppressed the working hours of his deceased brother travelled miles in proving that the incident in question took place either late in night or in the earlier hours of morning and remained un-witnessed---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Shahzad Tanveer v. The State 2012 SCMR 172 rel.

(b) Criminal trial---

----Witness---Chance witness---Scope---Testimony of chance witness was looked with suspicion---Evidence of chance witness was to be evaluated on the touchstone of corroboration from other source of unimpeachable character---If the tale of occurrence provided by such a witness was supported and corroborated from other attending circumstances, conviction could be based on the same---Chance witness was described and defined as the one who had no plausible explanation for his presence near the place of occurrence at the time of commission of offence.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Effect---In the present case, motive behind the occurrence was a previous incident took place one year prior to the occurrence, in which nose of accused-appellant was allegedly cut by the deceased---Admittedly, except oral assertion, no supporting material was brought on record to prove the motive---Neither any medical report of accused (cutting the nose) was placed on record nor any criminal case was registered in that regard---Complainant admitted during cross-examination that he had no knowledge as to whether the nose was chopped off or not---Motive of the occurrence was disbelieved, in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Medical evidence---Autopsy of deceased was conducted at about 4:00 p.m.---According to Medical Officer, duration between death and postmortem of deceased was about 12-hours and till that time rigor mortis had developed---Said duration did not coincide with the time of occurrence.

Muhammad Ilyas v. Muhammad Abid alias Billa 2017 SCMR 54 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that recovery of .12 bore pistol and hatchet were effected from accused and co-accused respectively---Crime empty secured from crime scene during spot inspection, was not found wedded with .12 bore pistol by Forensic Science Agency---Report of Forensic Science Agency showed that hatchet was not having any human blood-stains upon the same---Said recovery was inconsequential, in circumstances.

Syed Zeeshan Haider, Adnan Arshad Khan Jatoi and Malik Zubair Jilal for Appellants.

Muhammad Munir Gondal and Muhammad Imran Pasha for the Complainant.

Najeeb Ullah Jatoi, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1297

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. SUGHRAN BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 9483-B of 2013, decided on 2nd September, 2013.\

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 337-A(ii), 449, 148 & 149---Qatl-i-amd, shajjah-i-mudihah, house trespass in order to commit offence punishable with death, rioting, armed with deadly weapon and common intention---Ad-interim pre-arrest bail, confirmation of---Abscondence---Rule of consistency--- Applicability---Delay in lodging FIR---Scope---Prosecution case against petitioner was that complainant was present in his house when he heard knocks on his door, he opened the door and the petitioner along with co-accused persons forcibly entered his house---Co-accused persons, on the lalkara raised by petitioner, made fire shots on son of complainant, who succumbed to the injuries---Plea of prosecution was that petitioner had remained absconder for a period of three years---Petitioner explained that her husband was taken into custody, therefore, she in order to save the life of her four young children including two elder daughters shifted to a safe place---Validity---Petitioner was duly named in the complaint with specific role, however, admittedly the prosecution version consisted of two versions, one contained in the crime report and the other mentioned in the complaint, as to which of the versions was true was to be decided by Trial Court after recording the prosecution evidence---Crime report was lodged with a delay of two days while complaint was lodged with a further delay of eight months---Role of raising lalkara was ascribed to petitioner and no overt act qua inflicting any injury was alleged against her---Explanation of petitioner regarding abscondence carried credence, especially after a heinous occurrence, complainant party attack the accused side in order to take revenge---Factum of absconsion, in the present case, could not be given pivotal importance---Co-accused, who was assigned direct role of inflicting injury on the person of deceased had been admitted to post arrest bail, therefore, petitioner was entitled for the concession of bail on the plea of consistency---Ad-interim pre-arrest bail already granted to petitioner was confirmed.

Muhammad Fazal Ilyas Bodi v. The State 1979 SCMR 9 ref.

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

----S. 497---Bail---Appearance before court amounting to surrender---Scope---Surrender before judicial forum is equivalent to surrender before the police.

Mazhar Ahmed v. The State and another 2012 SCMR 997 ref.

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

----S. 497---Bail---Abscondence---Where case for grant of bail was made out, mere absconsion would not come in the way of granting bail to accused.

Mitho Pitafi v. The State 2009 SCMR 299; Nadeem v. The State PLD 1996 Kar. 490 and Ehsan Ullah v. The State 2012 SCMR 1137 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 337-A(ii), 449, 148 & 149---Qatl-i-amd, shajjah-i-mudihah, house trespass in order to commit offence punishable with death, rioting, armed with deadly weapon and common intention---Ad-interim pre-arrest bail, confirmation of---Abscondence---Applicability---Rule of consistency---Scope---Petitioner had absconded while co-accused had secured bail after arrest---Co-accused was assigned direct role of inflicting injury on the person of deceased---Held, even if pre-arrest bail of accused was dismissed on a technical ground that it did not fulfil the obligatory requirements being extraordinary relief, then soon after the pronouncement of order by High Court, the accused would be entitled to the relief of post-arrest bail---Ad-interim pre-arrest bail already granted to petitioner was confirmed.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 rel.

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

----S. 497---Constitution of Pakistan, Art. 9---Bail---Liberty of a person---Heinous offence---Liberty of a person is a valuable right guaranteed under the Constitution, one cannot be refuted the premium of bail only on the ground of involvement in a heinous offence.

Abid Saqi for Petitioner along with Petitioner in person.

2019 P Cr. L J 1312

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

BASHIR AHMED---Petitioner

Versus

GHULAM MUHAMMAD and others---Respondents

Criminal Revision No. 1196 of 2011, decided on 30th January, 2013.\

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

----Art. 27---Facts showing existence of state of mind, or of body, or bodily feeling---Relevance---First version of accused---Scope---Petitioner assailed order of Trial Court whereby it, during the course of trial in complaint case, sustained the objection of the complainant and refused to allow the petitioner to put a specific question regarding the first version of accused to investigating officer---First version of accused recorded immediately after the occurrence was relevant in view of Art. 27 of Qanun-e-Shahadat, 1984---First version of the accused was the only material which could be brought on record during the course of trial---Answer of question put to investigating officer regarding first version of the accused was available as documentary evidence, which was otherwise admissible and could be taken into consideration by the Trial Court while passing final judgment---Trial Court was not justified in declining the petitioner to put question to Investigating officer with regard to the first version of accused---Trial Court was directed to allow the petitioner to put the question---Petition was allowed, accordingly.

Liaqat Ali and another v. The State 1998 PCr.LJ 216 and Muhammad Arshad and others v. The State and others PLD 2011 SC 350 ref.

Ghulam Hussain v. The State PLD 1974 Kr. 91 and Hasil son of Qabul v. Emperor AIR (29) 1942 Lahore 37 fol.

Shahid Naseem Garwa for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General.

2019 P Cr. L J 1341

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

BADSHAH ZADA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 235779 of 2018, decided on 30th January, 2019.

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

----Ss. 32 & 74---Trafficking of narcotic drugs---Articles connected with narcotics---Scope---Confiscation of vehicle---Appellant assailed order of Trial Court whereby it refused to release the vehicle involved in the narcotics case---Validity---Vehicle in question could not be termed as "case property" as narcotic (charas) was not recovered from the secret compartments of the vehicle in question---Appellant was neither an accused nor any material was available with the prosecution that his vehicle was used in the offence with his active knowledge---Even otherwise there was no other claimant of the vehicle in question---Appeal was allowed and Trial Court was directed to issue process for handing over the vehicle in question to its legitimate and registered owner after due verification.

Muhammad Hanif v. The State and others 2011 SCMR 1471 and Allah Ditta v. The State 2010 SCMR 1181 ref.

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

----S. 32---Articles connected with narcotics---Scope---Confiscation of vehicle---Vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it is carrying unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic offences and thirdly, where narcotics have been recovered from its secret chambers, cavities or compartments, etc.

Javed Hayat and another v. The State PLD 2006 Lah. 167 rel.

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

----S. 32---Articles connected with narcotics---Confiscation of vehicle---Release of vehicle---Burden of proof---Scope---Section 32 of Control of Narcotic Substances Act, 1997 deals with the final confiscation or release of the vehicle to the owner, after conclusion of the trial, if he has proved that he has no knowledge about the offence, which has been committed in the vehicle---Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner has the knowledge of his vehicle being used in the crime---Knowledge is to be proved by leading evidence and the Trial Court can form such opinion after having taken into consideration the facts of the case.

Allah Ditta v. The State 2010 SCMR 1181 rel.

Hammad Akbar Wallana for Appellant.

2019 P Cr. L J 1363

[Lahore]

Before Asjad Javaid Ghural, J

Mst. SAIRA BIBI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 320-J, 1912 and Criminal Revision No. 824 of 2010, decided on 28th March, 2019.

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

----Ss. 302(b), 34 & 304--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd and common intention---Proof of qatl-i-amd liable to qisas---Appreciation of evidence---Benefit of doubt---Joint extra-judicial confession---Withholding material witness---Delayed judicial confession---Complainant got lodged the crime report against unknown persons stating therein that he was sleeping when the wife of his deceased son woke him and told him that her husband was not present on the cot---Complainant along with his other son went down the house and found his son's dead body lying on the floor---Prosecution case hinged upon circumstantial evidence comprising of extra-judicial confession, recovery of weapon of offence and judicial confession made by the wife of deceased before Trial Court---Witness of extra-judicial confession deposed that he along with given-up witness was present in his house when accused persons confessed their guilt with regard to the murder and said that they fell in love, wanted to marry each other, had planned to remove the hurdle i.e. the deceased; that wife of deceased called her paramour inside the bethak and he committed her husband's murder---Said witness admitted during cross-examination that the accused persons jointly confessed their guilt while sitting in the bethak; that he did not try to apprehend the accused persons because they were armed with firearm weapon at the time of their confession---Conduct of accused persons was against the human psyche and norms of the society to confess their guilt before the person relating to the deceased's family member just to invite trouble for themselves---Unnatural conduct of both the witnesses of extra-judicial confession for not apprehending the accused persons neither giving information to the complainant nor the police despite having mobile phones with them, showed that the story of alleged extra-judicial confession had been manoeuvred and cooked-up afterwards to manage the false implication of accused persons---Evidentiary value of joint extra-judicial confession had been disapproved by the Supreme Court---Prosecution withheld the second witness of extra-judicial confession for the reasons best known to the complainant---Inference could be drawn that had the said witness been produced before Trial Court he would not have supported the prosecution version---Recovery of different articles from the room belonging to the deceased and his wife i.e. pictures of wife of deceased and her paramour connected with safety pin, a cell phone where name of her paramour was reflecting at the screen, 3 stripes of "Ativan" tablets and two love letters---Said article were neither recovered in the presence of accused wife nor in pursuance of her disclosure---Accused cleared in her confessional statement that cell phone was given by her real brother---Prosecution failed to make any connection of three stripes of tablets with murder---Although it was alleged that accused wife had intoxicated the deceased with tablets yet it stood negated during her cross-examination as to where she stated that on receiving the first dagger blow of co-accused, deceased grappled with him---No element of intoxication came on surface in post-mortem examination report---Two love letters produced by prosecution were not sent to hand-writing expert and without expert report said letters could not be linked with the accused persons---Most crucial and substantive piece of evidence was that the accused wife made confessional statement before Trial Court and took the same plea in her statement recorded under S. 342, Cr.P.C.---Accused wife had neither opted to confess her guilt before Magistrate under S. 164, Cr.P.C. during investigation nor did she plead guilty at the time of framing of charge under S. 265-E, Cr.P.C.---Provisions of S. 304, P.P.C. could be put into force in cases of qisas and diyat and where the confession was found to be voluntary and confidence inspiring the accused was liable to qisas and diyat and not tazir---Trial court while disbelieving extra-judicial confession convicted and sentenced the accused persons on the basis of judicial confession, which was recorded at a belated stage---Judicial confession recorded with undue delay had no legal consequence---Statement recorded under S. 342, Cr.P.C. had to be taken in its entirety---Accused wife posed herself as an accomplice stating that her co-accused murdered the deceased---Said statement could not be relied upon against co-accused without independent corroboration---Accused wife stated during cross-examination that she was not allowed to meet with her daughters and she was given the impression that she could only be allowed to see her daughters if she made confessional statement---Criminal appeals were allowed and accused persons were acquitted, in circumstances.

Shahid Hussain alias Multani v. The State and others 2011 SCMR 1673; Muhammad Riaz v. The State PLD 1994 Pesh. 102; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 and Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Recovery of weapon of offence---Recovery from complainant's house---Value---Absence of report of Forensic Science Laboratory---Effect---Recovery of weapon of offence was effected from the residential house of the complainant where besides the complainant his other family members were also residing---Investigating Officer stated that at the time of recovery, weapon of offence was blood-stained and the place of recovery was not owned by the accused person---Weapon of offence was not sent to the office of chemical examiner and serologist to verify as to whether it was stained with human blood or not---Recovery of weapon of offence from accused was held to be inconsequential, in circumstances.

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

----S. 164--- Delayed confession--- Evidentiary value--- Judicial confession recorded with undue delay will have no legal consequences.

Muhammad Riaz v. The State PLD 1994 Pesh. 102 rel.

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

----S. 342---Examination of accused---Scope---Statement of accused recorded under S. 342, Cr.P.C. should be taken in its entirety.

Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 rel.

Malik Rab Nawaz, Mian Shahid Mehmood and Tahir Mahmood Mughal for Appellants.

Muhammad Asif Hayat and Mian Muhammad Sikandar Hayat for the Complainant.

Syed Muhammad Anees, District Public Prosecutor with Qalab, ASI for the State.

2019 P Cr. L J 1403

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD TARIQ---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR JAMPUR and another---Respondents

Criminal Miscellaneous No. 6936-H of 2018, decided on 29th November, 2018.

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

----S. 491---Police Rules, 1934, Rr. 22.3 & 22.4---Habeas corpus petition---Police officer to maintain manual registers---Scope--- Bailiff, on direction of court, produced detenues before court and in his report submitted that arrest of detenues was shown in roznamcha front desk but no manual roznamcha was available with the police---Investigating officer could not offer any explanation regarding his failure to manually maintain roznamcha---Counsel for the state produced a copy of notification whereby amendment was made in Rr. 22.3 & 22.4 of Chapter XXII of Police Rules, 1934 and contended that due to said amendments computerized entries were being maintained at police stations---Validity---As per order of Provincial Police Officer, it was mandatory to maintain hard as well as soft copy of registers and no absolute bar was provided to manually maintain police registers---Detenues, as per statement of investigating officer, were not required by the police---Detenues were set at liberty and petition was disposed of, accordingly.

(b) Police Rules, 1934---

----Chap. XXII, R. 22.4---Police station---Police officer to maintain manual registers---Scope---High Court directed that before making an entry in the computer maintained at police station every movement/happening of police station must be entered in the roznamcha of police station---If any investigating officer wrote police diary in the computer himself or got it written through some IT literate person, before starting it, he must write said fact in his roznamcha and after completing the police diary he should immediately take its print/hard copy and maintain it in the relevant register---After taking the hard copy Investigating Officer should write said fact in the roznamcha while mentioning the date and time---Every register of the police station as required under Police Rules, 1934 should be maintained properly before making the computer data online---Inspector General of Police was directed to ensure that all the manual registers of police stations are maintained properly without any delay---If any default was committed at any police station he was directed to take stern action against the concerned police officials/officers.

Muhammad Tahir Iqbal for Petitioner.

2019 P Cr. L J 1430

[Lahore]

Before Muhammad Waheed Khan, J

Ch. ASHIQ ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 12942-B of 2019, decided on 26th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Punjab Fertilizers (Control) Order (VII of 1973), S.18(1)---Punjab Essential Articles (Control) Act (XVII of 1973), Ss. 6(1) & 10(1)---Sale of adulterated and fake fertilizers---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Alternate sentence of fine---Effect---Allegation against the petitioner (a fertilizer dealer) was that the sample of fertilizer, taken in his presence, was found unfit/adultered after examination---Petitioner was, admittedly, a dealer of fertilizer and not a manufacturer---Prosecution had not alleged that bags from which sample were procured by the raiding party were lying open in the shop of the petitioner and were not sealed bags and the petitioner was used to sell them (bags) as received---Section 6(1) of the Punjab Essential Articles (Control) Act, 1973 stipulated punishment for the contravention of any notified order up to three years or with fine which would not be less than the value of essential articles in respect of which the order had been contravened or both---Since alternate sentence of fine had also been provided, therefore, the petitioner was entitled to concession of bail on the said ground alone---Record/query revealed that manufacturer or owner of the factory who had produced the fertilizer-in-question had not been associated or inquired about the substandard fertilizer which meant that Investigating Agency had not to investigate the real culprits---Investigation was already complete in the present case and the prosecution had already collected the evidence, so sending the petitioner behind the bars would not serve any beneficial purpose to the prosecution---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

K.H. Tahir Hashmi for Petitioner.

Ms. Tahira Parveen, District Public Prosecutor.

2019 P Cr. L J 1436

[Lahore]

Before Muhammad Waheed Khan, J

SHER MUHAMMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 246886 of 2018, decided on 6th February, 2019.

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

----S.540---Power of court to summon material witnesses---Discretion---Section 540, Cr.P.C. has two parts: first part confers wide jurisdiction on the court to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; second part places an obligation on the court to summon and examine or recall or re-examine any such person if his evidence appears to be essential to a just decision of the case---Court, in exercising discretion under the first part, will have to show the regard to the basic principles of a fair trial---Court, under the second part, has no discretion; overriding consideration over the second part is the duty of the court to do justice---If the court comes to the conclusion that the evidence of any person is essential to the just decision of the case, the evidence of that person must be made part of the record of the case in accordance with law.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 fol.

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

----S. 540---Power of court to summon material witnesses---Scope---Petitioner filed private complaint against accused persons that, they, while entering into his house tried to kidnap his daughter---Petitioner moved application under S. 540, Cr.P.C. for production of his daughter as witness but Trial Court dismissed the application on the ground that neither her name was mentioned in the list of witnesses nor her cursory statement was recorded---Validity---Story of cross version in FIR, which was cancelled by police, revolved around petitioner's daughter as the accused persons wanted to kidnap her but due to the intervention of other witnesses they could not accomplish their task---Petitioner's daughter had made a statement under S. 161, Cr.P.C. during the course of investigation which was available on record---Statement of petitioner's daughter was essential for just decision of the case and summoning her as witness was justified under second part of S. 540, Cr.P.C.---Criminal revision was allowed and order passed by Trial Court was set aside.

Pervez Ahmad v. Munir Ahmad and another 1998 SCMR 326 and Shahbaz Masih v. The State 2007 SCMR 1631 ref.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.

Ch. Muhammad Shoukat for Petitioner.

Maqbool Ahmed Bhatti for Respondents Nos. 2 to 15.

Tariq Javed, District Public Prosecutor for the State.

2019 P Cr. L J 1475

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

IRSHAD AHMAD---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision No. 55 of 2019, decided on 11th April, 2019.

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

----Art. 150---Question by party to his own witness---Hostile witness---Scope---Petitioner assailed order of Trial Court whereby it declined to declare the Investigating Officer as hostile witness---Validity---Investigating Officer had only narrated facts which he had come to know during investigation and did not add a word to that, in his examination-in-chief---Complainant, his counsel and Public Prosecutor were fully aware of the investigation conducted by Investigating Officer and it was in their knowledge that he would depose in support of his investigation, no matter it was in support of prosecution or of defence---Inspite of having knowledge regarding said facts, prosecution opted to examine him as its witness in the trial---No improvement, deviation, accumulation or suppression of material facts was visible in the statement of Investigating officer---Investigation was never challenged by the complainant before any forum so much so prosecution itself summoned the said witness---Revision petition was dismissed, in circumstances.

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

----Arts. 150 & 151---Question by party to his own witness---Impeaching credit of witness---Hostile witness---Scope---Court can permit party to put any question to his witness but it is not a right of the party---Discretion by Trial Court is to be exercised with due caution and attention keeping in view the interests of both the parties, so that no one is prejudiced from the order of the court---Normally a witness who becomes hostile or antagonistic to the party who produced him for recording statement in his support, is allowed to be cross-examined to impeach the credit of the witness by evidence of the kind mentioned in Art. 151 of Qanun-e-Shahadat, 1984---Party must establish that the witness is guilty of equivocation, or that he is varying in his statement, or is trying to suppress the truth or that he bears animosity towards the party who calls him---Absence of any act on the part of the witness of such a nature disentitles the party to cross-examine him to impeach his credit.

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

----Art. 150---Question by party to his own witness---Hostile witness---Principle---Witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court; that the witness's answer to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined.

Muhammad Boota and another v. The State 1984 SCMR 560 rel.

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

----Ss. 157, 160 & 161---Powers of police to investigate---Purpose of investigation---Scope---Sections 157, 160 & 161 and other sections of Cr.P.C. dealing with investigation provide mechanism of check and balance so that fair and impartial investigation is conducted within the framework of said provisions and also without fear or favour from political and foreign elements or without partiality and favouritism---Resolve of investigation is to find out truth and place the same before the Court by way of collecting evidence during the course of investigation.

(e) Criminal trial---

----Opinion of police---Scope---Opinion of police with regard to the innocence of accused is inadmissible in evidence.

2019 P Cr. L J 1491

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

ZAHIDA PARVEEN alias GOOMA and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 99099 of 2017, decided on 14th May, 2019.

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

----S. 9(c)--- Criminal Procedure Code (V of 1898), S. 516-A---Possession of narcotics---Appreciation of evidence---De-sealing of samples by complainant and safe transmission of samples to the Chemical Examiner not established---Benefit of doubt---Prosecution case was that police, on receiving spy information, apprehended the accused persons and recovered five packets of charas weighing five kilograms from one accused and two packets of charas weighing two kilograms from the other one---Representative sample from each packet of recovered charas was not separated and secured at the time of recovery rather it was prepared subsequently when the complainant handed over the case property and accused persons to the Investigating Officer---Investigating Officer handed over the case property to the Moharir but he did not hand over the parcels of sample---Recovery witnesses did not depose about separating and preparing parcels of sample out of case property by the complainant on the asking of Investigating Officer in their presence---No recovery memo. with regard to securing parcels of sample was prepared---Neither complainant nor the Investigating Officer was competent to de-seal the sample---Once case property was sealed, only court could prepare sample out of case property, while exercising powers under S. 516-A, Cr.P.C.---Moharir had deposed that he handed over the parcels to Investigating Officer for onward transmission to Forensic Science Agency, however, Investigating Officer never stated that Moharir handed him over the parcels to him or that he deposited the same in Forensic Science Agency---Safe custody of case property from recovery to its production in the court was not proved---Appeal was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Safe custody and transmission of samples---Scope---Safe custody of case property and its sample is necessary for conviction---Recovery in such cases is not mere corroborating piece of evidence rather it constitutes the charge and entails punishment---Not proving safe custody in such cases is fatal for the prosecution.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Ghani and others v. The Stat and others 2019 SCMr 608 rel.

(c) Administration of justice---

----Where a thing is to be done in a particular manner, the same has to be done in that manner and if not so done, it would not be lawful.

Ch. Zahid Saeed for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1531

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Waheed Khan, JJ

DILAWAR alias USMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1657 of 2015, decided on 10th July, 2019.

(a) Criminal trial---

----Witness--- Relationship with deceased--- Mere relationship of witness with deceased does not discard his testimony if otherwise same is trustworthy, confidence inspiring and appealing to reasons.

Ijaz Ahmad v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence--- Mitigating circumstances---Injured eye-witness, non-production of---Absence of recovery memo---Accused was alleged to have committed qatl-i-amd of five innocent persons---Trial Court convicted the accused and awarded death sentence on five counts---Plea raised by accused was that injured eye-witness was not produced by prosecution nor recovery memo of weapon was available on record---Validity---Injured eye-witness was not given up by prosecutor being unnecessary or being won over rather evidence was recorded after lapse of 21 years of the occurrence therefore, number of witnesses were either not available despite repeated attempts or they had expired or were untraceable---Non-production of injured eye-witness did not harm case of prosecution in any manner---When no recovery memo was available on record and crime empties secured from place of occurrence by investigating officer were sent to Forensic Science Agency after arrest of accused such recovery was inconsequential---High Court maintained conviction awarded to accused but treated such factors as mitigating circumstances and converted sentence of death to imprisonment for life---Appeal was allowed accordingly.

Haq Nawaz v. The State 2018 SCMR 21 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive, absence of---Effect---Proving motive is a basic element in a criminal case---If motive is missing in criminal case, same may react against imposition of maximum penalty of death.

Haq Nawaz v. The State 2018 SCMR 21 rel.

Muhammad Zain Qazi for Appellant.

Nemo for the Complainant.

Tariq Javed, Additional Prosecutor General for the State.

2019 P Cr. L J 1545

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD ASIF and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 1617, 1830 of 2015, Criminal Revision No. 992 and Murder Reference No. 33 of 2016, decided on 15th January, 2019.

(a) Administration of justice---

----Each criminal case has its own peculiar facts and circumstances and the same hardly coincide with each other.

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

----Ss. 302, 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party assaulted on complainant party, made firing, due to which, son of complainant sustained injuries and then succumbed to the injuries---Motive behind the occurrence was that earlier accused had kidnapped daughter of complainant and accused party had suspicion that the complainant party would take her back and also harm them---Ocular account consisted of three witnesses including complainant---Record showed that the complainant while making statement during the course of trial took complete somersault and narrated a different story as mentioned in his statement recorded under S. 161, Cr.P.C.---Eye-witnesses had made material improvements contrary to their statements recorded under S. 161, Cr.P.C. in order to bring the case in line with the statement made by the complainant---Said aspect when taken into consideration shattered the credence and authenticity of the statements of the prosecution witnesses of ocular account---Prosecution witnesses allegedly had identified the assailants in the light of headlights of the motorcycles, which were also used as means of transportation, however, the Investigating Officer had not taken into possession the means of transportation as well as light through which the prosecution witnesses had identified the assailants to supplement prosecution version--- Post-mortem examination though was conducted at 11:30 p.m. whereas according to prosecution version the occurrence had taken place on the same day at 7:00 p.m.---Medical Officer did not give specific duration between death and post-mortem examination rather the same was mentioned as within one day---Record transpired that ten persons were arrayed as accused, however, during the course of trial, they were acquitted of the charge on the same set of evidence---If evidence of the prosecution was disbelieved against bulk of the accused, it could not be believed against the other in the absence of very strong corroboration, which was squarely missing in the present case---Circumstances established that the prosecution case was pregnant with major discrepancies, creating serious dents in its authenticity---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308; Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473; Bashir Ahmed alias Mannu v. The State 1996 SCMR 308; Mursal Kazmi alias Qamar Shah and another v. State 2009 SCMR 1410; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Akhtar Ali and others v. The State 2008 SCMR 6; Shera alias Sher Muhammad's case 1999 SCMR 697 and Sher Bahadur's case 1972 SCMR 651 rel.

(c) Criminal trial---

----Witnesses, statement of--- Improvement in statement--- Effect---Statement improved during trial was not worth reliance.

Saeed Ahmed Shah v. The State 1993 SCMR 550 and Muhammad Rafique and other v. The State and other 2010 SCMR 385 rel.

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

----Ss. 302, 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Motive was not proved---Effect---Motive of the occurrence was stated that the acquitted accused/daughter of complainant and present accused-appellant had apprehension that the complainant party might not take daughter of complainant back to their home---Record showed that she had contacted marriage with the accused-appellant on 5.5.2010, while till 24.9.2010 absolutely no effort was made to effect compromise between the parties---Motive set forth in the crime report neither seemed plausible nor any evidence was adduced to substantiate the same.

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

----Ss. 302, 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Weapon of offence recovered from accused---Reliance---Scope---Recovery of 44-bore rifle was allegedly effected from the accused and report of Forensic Science Agency was positive---Admittedly, both the crime empties and rifle were dispatched to the agency on the same day---Said report was squarely devoid of legal credence, in circumstances.

(f) Criminal trial---

----Absconsion---Scope---Absconsion in isolation was not a proof of guilt of the accused.

Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

(g) Criminal trial---

----Benefit of doubt----Principle---One circumstance, which created reasonable doubt in the veracity of the prosecution version, is sufficient for giving benefit to the accused not as a matter of grace rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Arif Hussain and another v. The State 1983 SCMR 428 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Dr. Khalid Ranjha for Appellant.

Muhammad Arshad Farooqi, Deputy Prosecutor-General for the State.

Azam Nazeer Tarar for the Complainant (for Appellant in Criminal Appeal No. 1830 of 2015 and for Petitioner in Criminal Revision No. 992 of 2015).

2019 P Cr. L J 1577

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD AZAM KHAN alias NIAZI KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 2053 of 2014, Criminal Revision No. 444 of 2015 and Murder Reference No. 95 of 2015, decided on 7th March, 2019.

(a) Criminal trial---

----Each criminal case had its own peculiar facts and circumstances and the same seldom coincided with each other on salient features.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party made indiscriminate firing upon the complainant party, due to which, brother of complainant died at the spot---Motive behind the occurrence as disclosed in the crime report was stated to be previous enmity between both sides---Ocular account had been advanced through the statements of two witnesses---Perusal of their statements reflected that both of them had tried to establish their presence at the place of occurrence at the relevant time---Witness of ocular account, while making his statement during the course of trial had stated that when they alighted from the car, the accused, on seeing them, resorted to firing---Said witness had also stated that no fire shot hit the deceased when he was inside the car, whereas on arrival of the police the dead body was lying on the cot---Occurrence had taken place in the market/bazaar---Nothing was available on record as to from where the cot was made available and who put/placed the dead body over the cot---Similar was the position with regard to statement of other eyewitness---Investigation Officer, while making his statement during the course of trial, however, had contradicted the prosecution witnesses of ocular account on that score---Eye-witness, while appearing in the witness-box had stated that when he visited the place of occurrence, the dead body was lying inside the car---Both the prosecution witnesses of the ocular account also claimed that soon after the occurrence, they had attended the deceased and during this process, their clothes were stained with blood---Said clothes were not shown to the Investigating Officer nor those were taken into possession to substantiate said aspect of the case---Soon after approaching the place of occurrence, the Investigating Officer inspected the dead body and prepared inquest report in the presence of two persons; however, their names did not reflect in the crime report as witnesses--- Said fact cast doubt about the truthfulness of the prosecution story and presence of the prosecution witnesses at the place of occurrence at the relevant time---Record showed that the deceased had enmity with so many persons and even on the day of occurrence, he was having rifle with him along with plenty of bullets, which were taken into possession by the Investigation Officer at the time of spot inspection---Said fact found mentioned in the statement of witness---If the mode and manner of occurrence as depicted in the statements of the prosecution witnesses was taken into consideration it did not appeal to reason that why the deceased having sufficient firearms with him did not try to make his escape under the shelter of making firing upon the assailants---Even otherwise prosecution witnesses of the ocular account were unanimous that there existed enmity over murders between both sides---Said fact was also mentioned in the statement of witness, thus, there could not be any second thought about recklessness of the assailants which resulted into serious injuries to the deceased, who met his instantaneous death---Said circumstances show that if the assailants were so carefree in commission of offence, why they spared both the prosecution witnesses, who were present nearby and were of equal importance for them to fulfil their design of eliminating them---Circumstances suggested that the version advanced through the statements of witnesses of ocular account seemed to be tainted, not inspiring confidence and result of due deliberations and consultations, therefore, could not be given any legal credence---Circumstances and facts of the case suggested that deceased was a person of clandestine character as he was involved in so many criminal cases---Investigating Officer while appearing in the witness-box stated that on his first visit to the spot he had interrogated the shopkeepers of the nearby shops and during the course of investigation it came to limelight that two persons riding on a motorcycle approached the spot out of whom one was armed with Kalashnikov, who made firing and thereafter both of them fled away from the scene of occurrence---Said fact alone was suggestive of the fact that the deceased was done to death by some unknown person due to enmity/sectarian basis, which also found corroboration from the mode and manner of occurrence, as well as, number of injuries on the person of deceased---Prosecution had failed to establish culpability of the accused-appellant through reliable, trustworthy and confidence inspiring evidence, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(c) 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---Trial Court tried to establish the case against the accused-appellant on the basis of report of Forensic Science Laboratory with regard to recovery of Kalashnikov from him; however, perusal of record reflected that at the time of making his statement, official witness, who had allegedly transmitted the parcel to Forensic Science Laboratory, had not deposed said fact---Said witness having not been declared hostile, said fact straightway smashed the prosecution version.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused-appellant had not been ascribed any specific overt act rather general role had been assigned to accused along with the co-accused---Record available on file reflected that the occurrence was stated to have taken place on 18.01.2011 at 1:00 p.m., whereas the Medical Officer had conducted postmortem examination at 3:30 p.m.---Medical Officer had observed that duration between death and postmortem examination was six hours---Medical Officer, while appearing in the witness-box, admitted that in view of his observation qua duration between death and postmortem examination as embodied in the postmortem examination report, time of occurrence could be 9:00/9:30 a.m.---Medical evidence did not support the ocular account of the incident, in circumstances.

(e) Criminal trial---

----Motive--- Scope--- Motive was a double edged weapon, which cut both ways--- Motive could be one of the reasons for false implication and at the same time, a reason for commission of the occurrence.

Sahir Masih and others v. The State 1982 SCMR 178 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, which created reasonable dent in the veracity of the prosecution version, could be taken into consideration for the purpose of acquittal, not as a matter of grace, rather as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Abid Saqi, Mudassar Farooq and Sohail Afzal Khan for Appellant.

Muhammad Arshad Ali Farooqi, Deputy Prosecutor-General for the State.

Muhammad Ahsan Bhoon and Muhammad Imran Sulehria for the Complainant (in Criminal Revision No. 444 of 2015).

2019 P Cr. L J 1608

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

RAFI ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3526-B of 2019, decided on 18th June, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Money laundering---Bail, grant of---Expression 'proceeds of crime'---Scope---Further inquiry---Scope---Petitioner sought post-arrest bail in the case where FIA, on the report of informer, had intercepted a bus and petitioner got recovered a bag containing huge quantity of Pakistani currency---Nothing was on record to suggest that the said amount was derived from illegal business of hundi/hawala or other unlawful means, which could not be resolved on the basis of material available on record and needed further inquiry under S. 497(2), Cr.P.C.---Mere possession of local money was not a crime until and unless the same was proved to be derived from any illegal means---Cumulative reading of Ss. 3 & 4 of Anti-Money Laundering Act, 2010 revealed that the expression 'proceeds of crime' appeared to be a pre-requisite of an offence committed under Anti-Money Laundering Act, 2010 and that any money or property derived or obtained by any person directly or indirectly as a result of criminal activity was said to be proceeds of crime---Prosecution could not bring any documentary evidence which could depict that petitioner was dealing in hundi/hawala business---Nothing was available on record regarding previous history of conviction or involvement of petitioner in such like offences---Petitioner was admitted to post-arrest bail, in circumstances.

Abdul Qayyum Rao for Petitioner.

2019 P Cr. L J 1622

[Lahore]

Before Malik Shahzad Ahmad Khan, J

SHOUKAT ALI---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 17081-Q of 2019, decided on 19th June, 2019.

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

----Ss. 405 & 406---Constitution of Pakistan, Art. 199---Constitutional petition--- Quashing of FIR--- Criminal breach of trust---Civil litigation---Scope---Petitioner sought quashing of FIR wherein complainant had claimed that he had invested a certain sum of amount in the joint business with the petitioner and in that respect a written partnership deed was also executed between the parties---Business of the parties was, later on, closed and the petitioner returned partial amount to the complainant, however, he did not pay the profit of joint business or returned the remaining principal amount to the complainant---Validity---Present case was of civil nature regarding recovery of money or rendition of accounts but the complainant had lodged FIR by merely mentioning a single sentence therein that the petitioner had promised to keep the remaining amount of the complainant as a trust with him and the same would be returned as and when desired by complainant---Nowhere in the partnership deed was mentioned that amount invested by the complainant would remain as a trust---Provisions of S. 405, P.P.C. punishable under S. 406, P.P.C. were not attracted to the case---First Information Report was quashed.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Muhammad Ali and another v. Assistant Commissioner, Narowal and another 1987 SMR 795; Zulfiqar Ali v. Station House Officer, Police Station Model Town, Gujranwala and 2 others 2013 PCr.LJ 487; Umair Aslam v. Station House Officer and 7 others 2014 PCr.LJ 1305 and Zahid Jameel v. SHO and others 2008 YLR 2695 ref.

Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900 rel.

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

----S. 506---Constitution of Pakistan, Art. 199---Constitutional petition--- Quashing of FIR--- Criminal intimidation--- Vague allegations---Non-mentioning of exact time---Effect---Petitioner sought quashing of FIR (first information report) wherein complainant had levelled the allegation that petitioner and his co-accused extended threats of life---Validity---No specific time of threats of life allegedly extended by the petitioner and his co-accused had been mentioned in the FIR and a vague allegation by only mentioning the date in that respect had been levelled therein---No person could be prosecuted and convicted on the basis of vague and non-specific allegations---Trial Court would not be able to frame a specific charge in that respect against the petitioner and co-accused---First Information Report was quashed.

Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900 rel.

Mian Shahid Amin for Petitioner along with Petitioner in person.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State.

Ajmal Mehmood for the Complainant.

2019 P Cr. L J 1652

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD SOHAIL alias SAMMA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 323 of 2016 and Murder Reference No. 57 of 2016, decided on 26th February, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence---Sentence, reduction in---Accused were charged for committing murder of son of complainant---Motive behind the occurrence was a quarrel for not giving edible items on credit a few days before the occurrence by the deceased---Complainant produced two witnesses before the Trial Court to prove the last seen occurrence---Both had stated in unison that on 10.04.2014, they were passing nearby the house of accused and had seen him along with two co-accused persons, while taking son of the complainant into their house and after some time they came to know that son of the complainant had been murdered by the above said three accused---Said witnesses told the complainant that they lastly saw the deceased in the company of accused persons---Said witnesses in their statements had mentioned about the time, date and place where they had seen the deceased with the accused-appellants and after some time, the dead body was recovered from a deserted house, which was in front of house of the complainant adjacent to the house of accused-appellants---On perusal of scaled and un-scaled site-plan, it revealed that the house of the accused-appellants and deserted house owned by witness were adjacent to each other in a row and there was a wall of five feet high in between both the houses---Place wherefrom dead body of the deceased was recovered was connected with the said wall---Said facts showed that the last seen evidence produced by the prosecution not only passed the test of proximity of time but the place also---Names of both the said witnesses were mentioned in FIR on whose information FIR was lodged by the complainant and that aspect also went in favour of the prosecution---Alleged occurrence took place at 3.00 p.m., whereas matter was reported to police on the same day at 4.10 p.m. and such spontaneous lodging of FIR also spoke about sanctity of the prosecution witnesses---Witnesses of last seen evidence seemed to be truthful and worthy of credit---Prosecution had successfully proved its case against the accused by producing cogent, reliable and trustworthy evidence based on last seen, medical evidence and DNA report, which fully connected the accused with the commission of alleged crime---Accused was also found guilty by the Investigating Officer during investigation---Accused being a sole perpetrator committed the act of killing innocent child aged about 4/5 years, hence, appeal to his extent was dismissed---Prosecution had specifically introduced the motive on the basis of which appellants had committed the alleged crime but except the statement of complainant regarding the previous quarrel between the parties, no other evidence was available in that regard---Complainant in his statement had not given any time, date and place of occurrence and also not explained whether the said incident (quarrel) was reported to the police or not---Death sentence awarded by the Trial Court to the accused-appellant was converted into life imprisonment, in circumstances--- No corroborative evidence was available against co-accused, hence, she was acquitted by extending benefit of doubt.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Extra-judicial confession---Scope---Witnesses had stated that all the accused persons one by one made confession of their guilt before them and they immediately contacted the police for recording their statements---Record showed that police never recorded the statements of the witnesses regarding extra-judicial confession---Wajatakkar produced by prosecution witness deposed that he saw the appellant while coming from the place of occurrence after committing the murder of deceased but in his statement before the Trial Court, he did not mention the time and date of the same---Evidence of extra judicial confession and wajatakkar was not worthy of credit, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---DNA report---Scope---Soon after the occurrence, Police visited the crime scene and found three pieces of cigarettes along with other things and secured the same through recovery memo---Report of Forensic Science Agency reveals that parcels containing the pieces of three cigarettes were received by the said Agency on whereas the appellants were arrested in the case after two days of the incident by the police---Said factum was also confirmed by Police Official/S.I, while deposing before the Trial Court and on the same day (two days after the incident), all the three accused were produced before the Forensic Science Agency and their buccal swabs were taken---Result and conclusion of which, as per report, was that the DNA profile obtained and cigarette butts matched the DNA profile of accused---Chain of custody form generation of samples to their deposit with the Forensic Science Agency and up to its presentation in the court was established beyond any doubt.

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

----Art. 164---Evidence recorded through modern device---Scope---Evidence available because of modern device etc. were admissible in court of law.

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

----S. 510---DNA report---Evidentiary value---Report of Forensic Science Agency regarding the DNA was per se admissible piece of evidence.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203; Mukesh and another v. State for NCT of Delhi and others AIR 2017 SC 2161; Kamti Devi v. Poshi Ram (2001) 5 SCC 311 and State through Reference v. Ram Sinah and others 2014 (4) CCR 174 rel.

Shahid Azeem for Appellants.

Rana Shahid Mehmood for the Complainant.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1683

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

ASHFAQ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 453 of 2014 and Murder Reference No. 95 of 2013, decided on 20th November, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, credibility of---Recovery proceedings---Common course of action---Benefit of doubt---Exclusionary rule of evidence---Accused was charged with qatl-i-amd and was sentenced to death while co-accused was acquitted of charge---Prosecution witnesses allowing the assailant to cause death of their near and dear relative by infliction of injuries was significant---If two witnesses were present at the place of occurrence, they would have definitely intervened and prevented assailants from murdering their loved one---Deceased was at mercy of assailant and no one was there to save him at odd hours of night and such behavior on part of witnesses ran counter to natural human conduct and behaviour---Provision of Art. 129, Qanun-e-Shahadat, 1984, allowed court to presume existence of any fact which it had thought likely to have happened in common course of natural events and human conduct in relation to facts of a particular case---'Chhurri' (weapon of offence) was recovered from a house situated in another Mohalla and no independent witness of that locality was called upon to attend and witness the recovery proceedings; at the time of recovery of 'chhurri' prosecution witnesses did not know as to where owner of that house was---Prosecution had failed to prove exclusive possession of accused over recovered weapon of offence ('chhurri') and such fact in no manner corroborated case of complainant---Recovery proceedings were conducted in violation of S. 103, Cr.P.C. and were hit by exclusionary rule of evidence and could not be considered---High Court having disbelieved the ocular account, evidence of recovery had no consequence---Conviction and sentence of accused awarded by Trial Court was set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Pathan v. The State 2015 SCMR 315; Shahzad Tanveer v. The State 2012 SCMR 172; Liaquat Ali v. The State 2008 SCMR 95; Gulfam and another v. The State 2017 SCMR 1189; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Hashim Qasim and another v. The State 2017 SCMR 986 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

James Joseph for Appellant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Muhammad Zawar Shah for the Complainant.

2019 P Cr. L J 1719

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

SHAHBAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1010-J and Murder Reference No. 190 of 2015, decided on 16th January, 2019.

(a) Administration of justice---

----Each criminal case has its own peculiar facts and circumstances and same seldom coincide with each other on salient features.

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

----Ss. 302(b), 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing damiyah, common intention---Appreciation of evidence---Delay of more than one hour in lodging FIR---Effect---Record showed that occurrence took place at about 4.30 p.m. and matter was reported to the police at 5.40 p.m.---Distance between the place of occurrence and the police station was 1-2 kms---Place and time of occurrence and presence of the accused, as well as deceased was not denied by both sides---Delay was not fatal to the prosecution case, in circumstances.

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

----Ss. 302(b), 324, 337-F(i) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing damiyah, common intention---Appreciation of evidence---Sentence, modification of---Prosecution case was that the accused party while armed with weapons assaulted on the complainant party, made firing upon them, as a result of which, a lady was murdered and one person sustained injuries---Motive behind the occurrence was that grandson of complainant had contracted love marriage with daughter of co-accused, due to that grudge, accused persons committed the offence---Ocular account in the case consisted of the statements of complainant and injured---Version of accused-appellant was that except him, no other member of his family was present at the place of occurrence---Investigating Officer had deposed that 21 persons had joined investigation and had sworn affidavits in support of stance taken by the accused-appellant---Not a single person had come forward to rebut such plea from the complainant side---Prosecution case was that besides the accused, three co-accused persons were present at the place of incident and accused-appellant and co-accused had made firing---Investigating Officer had opined that except the accused-appellant, rest of the accused were not linked with the occurrence---Co-accused were acquitted of the charge on the same set of evidence and no appeal against their acquittal was filed which showed that only presence of the accused-appellant was admitted---If the prosecution version as well as defence plea taken by the accused-appellant were juxtaposed with the independent facts and circumstances and evaluated on judicial parlance, it became clear that both sides had not advanced their case with clean hands---Facts of the case, the evidence floated on record as well as other attending circumstances showed that except the accused-appellant no other accused including co-accused who was assigned injury on the person of injured was present at the place of occurrence---Prosecution case to the extent of accused only attracted the ingredients of S. 302(c), P.P.C.---High Court observed that material available on record showed that at the time of occurrence, the accused-appellant was quite young being 20/21 years of age, hence he was to be afforded an opportunity to mend his ways and spend his future life in a better way---Nothing on record that the accused-appellant had any antecedents of his involvement in any other criminal case---Occurrence had taken place more than seven years ago and at that time the maximum punishment for the offence was provided upto 25 years imprisonment---Keeping in view the incarceration already faced by the accused-appellant, it would be justified, if he was sentenced to undergo rigorous imprisonment for 14 years---Appeal was dismissed with said modification, in circumstances.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502; Abdul Karim v. The State 2007 SCMR 1375 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

Azam Nazeer Tarar for Appellant.

Muhammad Arshad Farooqi, Deputy Prosecutor-General for the State.

Hafiz Allah Yar Sipra for the Complainant.

2019 P Cr. L J 1743

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

SHAH BEHRAM and another---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 78-J of 2014 and Murder Reference No. 3 of 2013, decided on 13th November, 2018.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witness---Non-examination of private witnesses---Non-production of blood-stained clothes of witnesses---Effect---Prosecution case against accused persons was that they killed the deceased persons by firing---Complainant in his oral statement had stated that he along with others boarded a bus proceeding to place 'S', however, while appearing before Trial Court he and other witness stated that they were going to see the deceased---Said statement was in direct contrast to the sequence mentioned in the FIR---Both witnesses of the occurrence were chance witnesses---Complainant and the eye-witness stated that one of the deceased was fired at inside the bus and the deceased after receiving the fire shot fell on the seat---Contrary to the above, complainant and investigating officer stated that police took into possession blood-stained earth underneath the dead body of the deceased---Investigating officer stated that he did not collect the blood of the deceased from inside the bus---Neither the driver nor the conductor of the said bus was examined during the investigation---No one other than the related witnesses, who were riding the bus at the relevant time, were examined during investigation or trial of the case---Complainant admitted during cross-examination that the clothes of witnesses were stained with blood, however, said clothes were not taken into possession by the investigating officer---Appeal was accepted and conviction and sentences awarded by Trial Court were set aside---Murder reference was answered in the negative.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

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

----S. 302(b)--- Qatl-i-amd--- Medical and ocular evidence---Contradiction---Scope---Complainant and witness claimed that deceased was fired at when the accused person boarded the bus---Held; had such being the position blackening would have been observed at the time of post-mortem on the body of deceased---Doctor did not observe any blackening during post-mortem--- Appeal was allowed, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 rel.

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

----S. 302(b)--- Qatl-i-amd--- Medical and ocular evidence---Contradiction---Scope---Complainant and witness had stated that one of the accused persons had fired at the deceased which hit on his right shoulder and other accused fired on the right upper arm of deceased---Injury on the right arm of deceased was an exit wound---Injury on the lateral wall of the chest was not attributed to any of the accused persons---Prosecution case was contrary to medical evidence---Appeal was allowed, in circumstances.

Imtiaz Ali alias Taj v. The State and others 2018 SCMR 344 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Recovery of weapon---Non-association of private witnesses---Effect---Forensic Science Laboratory had only mentioned that weapons were in working order---Police had not associated residents of the locality in the investigation for the purpose of recovery---Recovery proceedings were conducted in violation of S. 103, Cr.P.C. and thus it was hit by exclusionary rule of evidence and could not be considered.

(e) Criminal trial---

----Motive---Recovery---Evidentiary value---Scope---Motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery has no evidentiary value and lose their significance.

(f) Criminal trial---

----Absconsion of accused--- Corroborative evidence--- Scope---Abscondence is only a corroborative piece of evidence and never considered in isolation.

Muhammad Farooq and another v. The State 2006 SCMR 1707 and Rohtas Khan v. The State 2010 SCMR 566 ref.

(g) Criminal trial---

----Benefit of doubt---Single circumstance creating doubt in the mind of a prudent person---Benefit is to be extended to accused not as a matter of concession but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(h) Criminal trial---

----Witness---Chance witness---Chance witness, in legal sense, is the one who claims to be present at the place of occurrence at the time of occurrence though his presence there was a chance in ordinary course of business.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, evidence of---Corroboration---When the eye-witnesses had been disbelieved against some accused persons having been attributed effective roles, such eye-witnesses could not be believed against the co-accused attributed a similar role.

Imtiaz Ali alias Taj v. The State and others 2018 SCMR 344 fol.

Muddasar Altaf Qureshi and Mian Babar Saleem for Appellants.

Muhammad Ali Shahab, District Prosecutor-General with Aurangzeb, ASI for the State.

Sheikh Muhammad Raheem for the Complainant.

2019 P Cr. L J 1795

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

ABIDA PARVEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 760-B of 2019, decided on 25th April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Bail, grant of---Qatl-i-amd, rioting, armed with deadly weapon, common object---Appreciation of evidence---Un-natural conduct of witness---Extra-judicial confession of co-accused---Further inquiry---Suckling baby in jail---Welfare of minor---Scope---Petitioner along with co-accused was charged for committing qatl-i-amd of her husband---Prosecution, relied on petitioner's and co-accused person's extra-judicial confession; claimed that petitioner administered sleeping pills to the deceased prior to his death and that petitioner pointed out the place of occurrence---Petitioner had allegedly confessed her guilt before the real brother of deceased but he did not at all react to the confessional statement of the petitioner and saw her leaving, without even moving an inch---Confession of co-accused could be used as circumstantial evidence against the other accused but only if the said confession was proved---Extra-judicial confession of an accused was weak type of evidence---No drug or poison was detected in the liver or stomach of the deceased---No opinion regarding the cause of death had been given as yet and the cause of death remained undetermined---Memo of pointing out the place of occurrence was irrelevant and inadmissible as nothing was discovered as a result of such pointing out---Place of occurrence as well as place of throwing the dead body was already in the knowledge of witnesses---Mere involvement in a heinous offence was no ground for refusing bail to an accused who otherwise became entitled for the concession of bail---Petitioner had given birth to baby boy in jail---Concept of welfare of minor was incompatible with jail life---Petition for grant of bail was accepted and petitioner was admitted to post-arrest bail, in circumstances.

Rahat Ali v. State 2010 SCMR 584 and Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932 ref.

Abid Mehmood v. State 2017 SCMR 728; Allah Ditta v. The State and others 2012 SCMR 184 and Ijaz Ahmad and another v. The State 1997 SCMR 1279 rel.

Mehmood Akhtar Ghumman and Rizwan Ahmad Khan for Petitioner.

Adnan Latif, Deputy District Public Prosecutor with Ans, ASI for the State.

2019 P Cr. L J 11

[Peshawar (Mingora Bench)]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

HAZRAT ALI---Appellant

versus

The STATE through Additional Advocate-General Khyber Pakhtunkhwa and 2 others---Respondents

Criminal Appeal No. 280-M of 2014, decided on 24th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused and co-accused persons were charged for attempting at the lives of the complainant and his companions through firing, due to which companion of complainant sustained injuries---Motive for the occurrence was an altercation between Chowkidar and complainant party---Record showed that complainant had charged three persons of the same family, father, son and grandson while assigning specific roles of effective firing---Complainant did not impute motive to the accused and his two co-accused which was ascribed as altercation and grappling between the complainant and Chowkidar, after they had a quarrel over staring by the said Chowkidar of plaza at the complainant where the occurrence took place---Accused and his co-accused were shown armed with firearms, without specifying their nature---Improvements and contradictions existed in the statements as some of the witnesses had showed the accused armed with pistols and others deposed that they were armed with pistols and Kalashnikovs---Complainant who was also the target as per the alleged motive escaped unhurt, while his companions received firearms injuries on vital parts of their bodies like knee, foot or thigh---Nature of injuries received by the injured, coupled with occurrence which was result of quarrel at the spur of moment, would raise question "about attempt at the lives of the complainant and his companions under S. 324, P.P.C."---Facts and circumstances of the case showed that there was complete darkness at 6.30 p.m. in the month of December (time of occurrence), source of light was not mentioned either in the FIR or in the site plan, but belatedly three bulbs were taken into possession by the Investigating Officer from the place of occurrence---Although, version of the prosecution was that light of the day was still there and darkness had not yet spread---Record transpired that accused and co-accused persons were not known to the complainant and the witnesses prior to the occurrence and they had emerged on the scene after altercation and grappling between the complainant and Chowkidar, but each of the accused was specifically charged for effective firing on particular injured witness---Witness had admitted about presence of bullet marks inside the plaza (place of occurrence), but no such bullet marks were noticed by the Investigating Officer during spot inspection---Place of occurrence was admittedly a crowded place but no other person received even a scratch during alleged firing by the three accused---No one from the general public or shop keepers came forward to depose about the occurrence---Record revealed that Chowkidar was admittedly present there at the time of occurrence, and received two lacerated wounds through blunt means and was made accused in the case---Said Chowkidar and co-accused were acquitted---Acquittal of Chowkidar and co-accused, would render evidence of prosecution against the accused not worthy of reliance, for the simple reason that the said acquitted accused persons were also charged for effective firing and attempt at the lives of complainant and his companions---Acquittal of said accused persons was based on discrepancies and infirmities in the same evidence of the prosecution, which was produced in the case against the accused---In the absence of confessional statement of the accused, and non-recovery of anything incriminating from him, after his arrest, would make the case against him, not distinguishable from the acquitted accused---Abscondance of the accused, in the absence of corroborative evidence, would not make other evidence against him worthy of reliance and confidence inspiring to lead to his conviction---Appeal was accepted and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

Sahibzada Asadullah for Appellant.

Mian Arshad Jan, A.A.-G. assisted by Rashid Ali Khan for the Complainant.

2019 P Cr. L J 46

[Peshawar (Abbottabad Bench)]

Before Syed Afsar Shah and Syed Muhammad Attique Shah, JJ

RIAZ AHMED---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No. 197-A of 2010, decided on 5th October, 2017.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Benefit of doubt---Occurrence, which was unseen, took place 45 days prior to lodging of FIR---Most of the witnesses in the case, were Police Officials---Witness of recovery of deadbody and weapon of offence, a retired Police Officer, did not know as to when and where the dead body of the deceased was recovered---Testimony of said witness could not be relied upon, being inconsistent---Evidence of another witness, too was of no worth being hearsay---Sharp contradiction existed in the statements of Lady Doctor, who examined the dead body of the deceased, and other prosecution witness---Star witness of the occurrence, did not know the exact date when the occurrence took place and also when the informer informed her about the occurrence---Uncle of the deceased who deposed to be marginal witness to the recovery of the dead body of the deceased, contradicted his own statement by narrating two versions in the same breath---Possibility of concoction in the statement of said witness, could not be ruled out---Nothing was available on record, which could show either the report regarding gender of the deceased or sending of samples for DNA test to confirm that the deceased was the daughter of the complainant---Body of the deceased was fully mutilated and decomposed, same was not sent to Anatomy Expert for determination of firearm injury on her person---When the substantive evidence in the shape of ocular account furnished by the star witnesses, was not worth reliance, being full of material contradictions, then corroborative evidence in the shape of motive, recovery and discovery, would be of no use to the prosecution---Prosecution had failed to prove the guilt of accused beyond any shadow of doubt in circumstances---Conviction and sentences awarded to accused, were set aside, he was acquitted of all charges levelled against him.

Muhammad Sadiq v. The State 2017 SCMR 144; Javed Iqbal v. The State PLD 2014 Lah. 62; 1998 Cr.LJ 3934; PLD 2005 SC 418; 2007 SCMR 6; 2011 YLR 1965; Muhammad Ilyas v. The State 1997 SCMR 25; Muhammad Khan and another v. The State 1999 SCMR 1220; Pir Mazhar-ul-Haq v. The State PLD 2005 SC 63; President Balochistan High Court Bar Association v. Federation of Pakistan 2012 SCMR 754 and Nasrullah alias Nasro v. The State 2017 SCMR 724 ref.

(b) Criminal trial---

----Benefit of doubt---Single doubt, if found reasonable would entitle accused to its benefit.

Qazi Shams-ud-Din and Saeed Ahmad Awan for Appellant.

Raja Muhammad Zubair, AAG for the State.

Ghulam Mustafa Khan Swati for the Complainant.

2019 P Cr. L J 100

[Peshawar (Bannu Bench)]

Before Qalandar Ali Khan and Shakeel Ahmad, JJ

NAQIBULLAH---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No. 151-B of 2011, decided on 5th December, 2017.

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

----S. 417---Appeal against acquittal---Scope---Scope of interference in appeal against acquittal was narrow and limited---Court was always slow in interfering with an acquittal judgment, unless it was shown to be perverse, passed in gross violation of law; suffering from error of grave misreading or non-reading of evidence on record---Criteria of interference in the judgment of acquittal was not as against cases involving conviction.

Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495; Noor Mali Khan v. Mir Shah Jehan and another 2005 PCr.LJ 352; Imtiaz Asad v. Zain-ul-Abidin and another 2005 PCr.LJ 393; Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Mulazim Hussain v. The State and another 2010 PCr.LJ 926; Muhammad Tasweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Farhat Azeem v. Asmat ullah and 6 others 2008 SCMR 1285; Rehmat Shah and 2 others v. Amir Gul and 3 others 1995 SCMR 139; The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Ayaz Ahmed and another v. Dr. Nazir Ahmed and another 2003 PCr.LJ 1935; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1; Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCMR 223; Najaf Saleem v. Lady Dr. Tasneem and others 2004 YLR 407; Agha Wazir Abbas and others v. The State and others 2005 SCMR 1175; Mukhtar Ahmed v. The State 1994 SCMR 2311; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; 2004 SCMR 249; Khan v. Sajjad and 2 others 2004 SCMR 215; Shafique Ahmad v. Muhammad Ramzan and another 1995 SCMR 855; The State v. Abdul Ghaffar 1996 SCMR 678 and Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 rel.

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

----Ss. 302, 324, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, attempt to commit qatl-i-amd, rioting---Common object---Appeal against acquittal---Reappraisal of evidence---On the same set of evidence, co-accused were acquitted by the Trial Court, and no appeal having been filed against said acquittal, which had achieved finality---Prosecution had failed to prove that the pistol in question belonged to accused or that it was left by accused on the venue of crime---Complainant had alleged that he sustained injuries during the incident, but did not know as to how and by what means he sustained said injuries---Complainant had not received any bullet injury---Allegedly five assailants launched sudden attack on the complainant party with their deadly weapons in the small dimension of room of clinic, but none was hit from complainant side---Probatory value of the site-plan was frustrated by not corroborating the prosecution's stance---No illegality or legal infirmity was found in the impugned judgment of the Trial Court---Trial Court having rightly acquitted accused by extending benefit of doubt, after properly appraising the evidence on record, impugned judgment called for no interference by the High Court---Appeal being bereft of merit, was dismissed.

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

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common object---Abscondence of accused per se, did not constitute guilt of accused. [p. 107] G

Rahimullah Jan v. Kashif PLD 2008 SC 298 ref.

Noor Zada Khan Ahmadzai for Appellant.

Shahid Hameed Qureshi, Additional A.-G. for the State.

Muhammad Anwar Khan Maidad Khel for Respondents.

2019 P Cr. L J 154

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

NASEEM KHAN---Petitioner

Versus

BANARAS KHAN JADOON and 3 others---Respondents

W.P. No. 1113-A of 2017, decided on 23rd November, 2017.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), Ss. 63, 169 & 173---Constitution of Pakistan, Art. 199---Dishonestly issuing a cheque---Petition for quashing of FIR---Scope---Discharge of accused by Police Officer---Release of accused when evidence deficient---Scope---Investigation Officer, after registration of FIR, had the authority to determine the truthfulness or falsehood of allegations levelled against the accused, subject to affirmation of competent court---If Investigation Officer came to the conclusion that the allegations contained in the FIR were incorrect, he could under S. 63, Cr.P.C. refer the matter to the Magistrate for discharge of the accused---Police Officer had also the authority to release accused in terms of S. 169, Cr.P.C., if he came to the conclusion that there was no sufficient evidence or reasonable ground of suspicion to justify the forwarding of accused to the Magistrate---Police Officer could, if such person was in his custody, release him on execution of bond with or without sureties and direct him to appear, if and when required, before the Magistrate empowered to take cognizance of the offence; it was then the Magistrate to pass such order as deemed appropriate under S. 173, Cr.P.C. for discharge of such bond or otherwise as he deemed fit---Said process could not be by-passed by filing constitutional petition for quashing of FIR, as investigation of case was the domain of the Investigating Agency and could not be interfered by High Court under constitutional jurisdiction---Constitutional petition was dismissed, accordingly.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 fol.

Ghulam Mustafa v. The State 2008 SCMR 75 and Muhammad Ali v. Additional I.-G. Faisalabad PLD 2014 SC 753 ref.

2019 P Cr. L J 186

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Mohammed Ibrahim Khan, JJ

SARDAR ALI---Appellant

Versus

HAMEEDULLAH and others---Respondents

Criminal Appeal No. 113-M of 2015, decided on 6th March, 2018.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Evidence of sole witness---Testimony of sole eye-witness of the occurrence, closely related to the deceased being his real son, qua guilt of accused was to be taken with extra care and caution---Solitary piece of evidence could make or break the case of prosecution.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Mode and manner of occurrence as advanced by the complainant, was not appealable to prudent mind---Contradictions and improvements in the evidence of prosecution witnesses had made the story of prosecution doubtful---Occurrence was unseen and un-witnessed---Prosecution case was that the deceased was done to death through fire shots by accused, yet at the relevant time no signs of resistance had been shown by the complainant at least to save his father from the assailants, rather he became a mere spectator---Such kind of attitude of the complainant being sole eye-witness and son of the deceased was beyond understanding---Accused had allegedly made three fire shots upon the deceased, but no crime empty had been recovered, which had totally negated the stance of prosecution---Alleged witnesses of the recovery of weapon of offence i.e. shot gun, had not been produced as witness during trial---Prosecution version was not supported by medical evidence---Prosecution could not prove motive through cogent and convincing evidence---Prosecution having failed to prove its case against accused, Trial Court was justified to pass judgment of acquittal in favour of accused persons, which called for no interference by High Court.

(c) Criminal trial---

----Witness, testimony of---Improvements made by an eye-witness in order to strengthen the prosecution case, would lose its credibility and evidentiary value---When a witness made contradictory statement, or changed his version to suit the situation, which was found to be deliberate and dishonest, same would cause serious doubt on veracity qua guilt of accused---Testimony of a single eye-witness would be sufficient to bring home charges against accused, but when such an eye-witness made improvements and his version did not match with the actual occurrence, such ocular evidence was of no use to the prosecution.

Farman Ahmad v. Muhammad Inayat 2007 SCMR 1825 ref.

(d) Criminal trial---

----Benefit of doubt---Quality of evidence must be of first degree and sufficient enough to dispel the apprehension of the court with regard to the implication of innocent persons along with guilty one by the prosecution---Even a single doubt, if found reasonable, would be sufficient to acquit accused, giving him benefit of doubt; because bundle of doubts, were not required to extend the legal benefit to accused in that regard.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730 ref.

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

----S. 417(2-A)---Appeal against acquittal---Scope of interference in appeal against acquittal, was narrow and limited---Accused would be presumed to be innocent unless proved guilty---Presumption of innocence, was doubled and the court would be very slow in interfering with judgment of acquittal unless it was shown to be perverse based on gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence---Judgment of acquittal was not to be lightly interfered---Heavy burden lay on the prosecution to rebut the presumption of innocence, which accused had earned and attained on account of his acquittal.

Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11 ref.

Rashid Ali Khan for Appellant.

Sher Muhammad Shangla for Respondents.

Suliman Khan State counsel.

2019 P Cr. L J 225

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

ALL SWAT PAPER CHIPS AND POPS OWNERS ASSOCIATION DISTRICT SWAT through President---Appellant

Versus

BAKHT AFSAR EX-DEO DISTRICT SHANGLA AMIR JUMAT ISLAMI PK-87 SHANGLA and 5 others---Respondents

Criminal Appeal No. 241 of 2017, decided on 15th December, 2017.

(a) Words and phrases---

----Mutatis Mutandis---Defined.

Black's Law Dictionary (Revised 7th Edition 1999 at p.1039) and PLD 1999 SC 1063 rel.

(b) Khyber Pakhtunkhwa Consumer Protection Act (VI of 1997)---

----Ss. 15 & 16---Criminal Procedure Code (V of 1898), Ss. 404, 405, 406, 406-A, 423 & Chapter XXXI---Appeal---Maintainability---High Court, jurisdiction of---Penalties, non-awarding of---Appellants were aggrieved of directions given by Consumer Court, in exercise of powers under S. 15 of Khyber Pakhtunkhwa Consumer Protection Act, 1997---Consumer Court did not impose penalty under S. 15 of Khyber Pakhtunkhwa Consumer Protection Act, 1997 while deciding complaint filed by consumer---Validity---Consumer Court, while rendering orders under S. 15 of Khyber Pakhtunkhwa Consumer Protection Act, 1997 did not act as criminal courts therefore, High Court while exercising jurisdiction under Chapter XXXI, Cr.P.C., with particular reference to S. 404, Cr.P.C. was unable to pass any order---Consumer Court did not deal with questions subject matter of appeals as criminal courts---Conferring powers of appellate criminal court (i.e., S. 423, Cr.P.C.) demonstrated that appeal would be competent only when order assailed was passed under S. 16 of Khyber Pakhtunkhwa Consumer Protection Act, 1997---Powers of High Court as provided under S. 423 of Cr.P.C. were only with regard to conviction or acquittal or other matters provided under Ss. 405, 406 & 406-A, Cr.P.C.---When there was no order of conviction or acquittal as provided by S. 16 of Khyber Pakhtunkhwa Consumer Protection Act, 1997, orders challenged were other than those of a criminal court as provided by S. 404, Cr.P.C.---High Court could not extend meaning and scope of a criminal appeal beyond clear cut provisions as provided by Chapter XXXI of Cr.P.C.---When remedy by way of appeal was not available, then only remedy available to aggrieved party was to file Constitutional petition---High Court converted criminal appeal into Constitutional petition in circumstances.

Mian Sharif Shah v. Nawab Khan and 5 others PLD 2011 Pesh. 86 fol.

Black's Law Dictionary (Revised 7th Edition 1999 at p.1039); PLD 1999 SC 1063; PLD 1958 Kar. 35; 2011 PLC (C.S.) 1323; Muhammad Akram v. DCO, Rahim Yar Khan and others 2017 SCMR 56 and Mian Asghar Ali v. Government of Punjab and others 2017 SCMR 118 ref.

Shah Nawaz Khan for Appellant.

Muhammad Rahim Shah, Assistant A.-G. for the State.

Usman Ali for Appellant (in Cr. A. 9-M of 2013).

Ahmad Hussain, for Appellant (in Cr. A. 190-M of 2017).

Abdul Ghaffar Khan for Respondent No.2 (in Cr. A. No. 190-M of 2017).

Usman Ali for Appellants (in Cr. A. No. 3-M of 2017).

Iftikhar Ahmad Nasir for Respondents (in Cr. A. No. 3-M of 2017).

Respondent No.3 in person (in Cr. A. 244-M of 2016).

2019 P Cr. L J 259

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Nasir Mahfooz, JJ

ABBAS KHAN---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, KHYBER PAKHTUNKHWA and 10 others---Respondents

W.P. No. 1387-P of 2016, decided on 26th June, 2018.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art. 199---Qatl-i-amd, act of terrorism---Quashing of FIR, petition for---Accused, police officials---Once a cognizable case under S.302, P.P.C., read with S.7 of Anti-Terrorism Act, 1997, and other ancillary sections of law was registered, same could not be simply quashed by the Police Officials, specifically when the Police Officials were accused of such a serious offence---Discharge of accused Police Officials, had been moulded to circumvent the process of law, which had defeated the ends of justice.

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

----Ss. 173 & 169---Investigation---Discharge of accused---Investigation was to be completed without unnecessary delay, and where it was not completed within the period of 14 days from the date of recording of FIR; an interim report was to be forwarded to the court by the Public Prosecutor---In the present case, applicability of S.169, Cr.P.C., for discharge of accused was ruled out of consideration as in cross FIR, petitioner was also accused for similar offence---If one accused had been discharged as per report then the petitioner would also deserve to be treated in similar manner---Despite lapse of three years from the date of lodging of FIR, challan had not been put in court---Observations made in the impugned report were quashed by the High Court with direction that prosecution would submit challan before the court within a period of 14 days and Court to initiate trial in both the FIRs.

Mukamil Shah Taskeen for Petitioner.

Muhammad Riaz Khan, AAG and Syed Abdul Fayaz for Respondents.

2019 P Cr. L J 275

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Ijaz Anwar, JJ

ATTA MUHAMMAD DESHANI---Petitioner

Versus

DISTRICT POLICE OFFICER, HARIPUR and 2 others---Respondents

W.P. No. 145-A of 2015, decided on 22nd May, 2018.

Penal Code (XLV of 1860)---

----Ss. 153-A, 295-A & 298---Criminal Procedure Code (V of 1898), Part V, Chapter XIV [Ss. 154 to 176] & S. 196---Constitution of Pakistan, Art.199---Promoting enmity between different groups etc., deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, uttering words with deliberate intent to wound religious feelings---Prosecution for offences against the State---Quashing of FIR, petition for---Petitioner, who was a religious scholar and provincial president of religious party, deliberately and maliciously in his speech called a sect of Muslims as non-Muslims and allegedly outraged religious feeling and promoted sectarian enmity between the two sects---First Information Report was registered against the petitioner---Petitioner had filed Constitutional petition for quashing of said FIR contending that same was registered in violation of S.196, Cr.P.C.---Validity---Police had to perform the functions, specifically assigned to them without any outside interference under Part V, Chapter XIV, Cr.P.C.---Functions of the court would commence only when a complete challan was sent to it for trial of accused---Court was to take cognizance of the case under S. 196, Cr.P.C. after submission of challan---Station House Officer concerned had submitted challan under S. 173, Cr.P.C., in routine without submitting the same in the shape of complaint or seeking sanction of the Federal Government, Provincial Government or any officer so authorized---Proceedings to that extent were quashed---Trial Court, could not take cognizance on such defective challan---Proceedings before the Trial Court having been quashed on legal ground, concerned authorities could proceed against the petitioner, but strictly in accordance with the orders of the Provincial Government or the Federal Government as required under S.196, Cr.P.C.

2012 PCr.LJ 923; 1990 PCr.LJ 1708; PLD 2005 Lah. 631; 1976 PCr.LJ 184; PLD 1978 Lah. 1032; 1992 PCr.LJ 2346; 1988 PCr.LJ 992; AIR 1948 PC 82-11; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Kakwani and others PLD 1994 SC 281; Mian Yasin Watoo and others v. Government of Punjab and others 1997 PCr.LJ 836; Muhammad Khan v. The Government of West Pakistan and others PLD 1960 Lah. (W.P.) 434; Qaisar Raza v. The State 1979 PCr.LJ 758; Maulana Dost Muhammad v. The State 1976 PCr.LJ 184; Major General Fazal-i-Raziq, Chairman, WAPDA, Lahore v. Ch. Riaz Ahmad and another PLD 1978 Lah. 1082; Fayyaz Ahmad v. The State and others 2003 YLR 3137; Syed Nawaz Hussain and others v. The State and others 2014 PCr.LJ 1256; 2012 GBLR 137; Bashir Ahmed v. The State 2000 PCr.LJ 902; PLD 2017 Isl. 64; 2010 PCr.LJ 1809 and 2016 YLR 1279 ref.

Noyeser Khan Jadoon for Petitioner.

Raja Muhammad Zubair, A.A.G. for Respondents.

2019 P Cr. L J 318

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

MUHAMMAD LEHRASIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Review No. 67-A of 2017, decided on 3rd October, 2017.

(a) Review---

----Power of a court---Scope---Like an appeal or revision, power to review judgment or order is creation of statute---Unless power of review has been specifically conferred upon a court through an explicit provision of law, court cannot review its order/judgment---Court has no inherent power to review its judgment or order even if same is based on incorrect appreciation of evidence regarding law.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

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

----S. 5(2)---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471 & 477-A---Criminal Procedure Code (V of 1898), S. 369---Criminal misconduct, cheating and forgery---Review of judgment---Petitioner was convicted by Trial Court and was sentenced to various terms of imprisonment---Petitioner was absent on the day when appeal was fixed, resultantly appeal was dismissed by High Court---Petitioner sought review of order dismissing appeal---Validity---Provisions of S. 369, Cr.P.C. barred court administering criminal jurisdiction to alter its judgment after it was written, signed and pronounced, except to correct a clerical error---High Court had no jurisdiction to review order passed under criminal appeal jurisdiction---Review petition was dismissed in circumstances.

Manzoor Ahmed and 2 others v. Muhammad Nawaz PLD 2013 Lah. 123 and Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 distinguished.

S.A. Rizvi v. Pakistan Atomic Energy Commission and others 1986 SCMR 965; Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633; PLD 2016 Pesh. 195; 2013 PCr.LJ 767; 1971 PCr.LJ 483; PLD 2015 SC 322; PLD 2004 SC 911; 2014 SCMR 1609; 2012 SCMR 334; 2008 SCMR 165; 2008 SCMR 880; PLD 2004 SC 32; 2002 SCMR 1239; 2002 SCMR 1611 and PLD 2001 SC 433 rel.

Arshad Awan for Petitioner.

2019 P Cr. L J 361

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

BASEERULLAH---Appellant

Versus

ANWAR ALI SHAH and another---Respondents

Criminal Appeal No. 439-B of 2016, decided on 2nd November, 2018.

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

----S. 342--- Non-examination of accused--- Effect--- Accused had assailed order of Trial Court whereby he was convicted---Accused pleaded that Trial Court convicted and sentenced him without recording his statement under S. 342, Cr.P.C.---Validity---Affording an opportunity to accused under S. 342, Cr.P.C. was mandatory and he had to be heard in detail to enable him to explain his position and lead any evidence in defence and also to record statement on oath to disprove allegations levelled against him, if he opted to do so---Where the accused was not questioned at all or his attention to an important piece of evidence was not invited, the omission so made would be an incurable illegality and fatal---Appeal was allowed by setting aside conviction and sentence recorded by Trial Court and the case was remanded to Trial Court with the direction to record statement of accused under S. 342, Cr.P.C.

Ashraf v. The State 2004 PCr.LJ 42; Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 and State of Maharashtra v. Sukhdeo Singh 1992 Cr.LJ 3454 ref.

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

----S. 342--- Examination of accused--- Principles--- Examination of accused under S. 342, Cr.P.C. is based on maxim "audi alteram partem", that no one should be condemned unheard and intended to offer him full opportunity to explain all incriminating circumstances appearing in evidence against him.

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

----S. 342---Interpretation and scope of S. 342, Cr.P.C.---Section 342, Cr.P.C. has two parts---First part gives discretion to the court whereas the second part is mandatory---Court under the first part can put such questions to the accused which deemed appropriate in arriving at just conclusion whereas under the second part, examination of accused is must to point out salient points appearing in evidence against him and to ask for an explanation.

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

----S. 342---Non-examination of accused under S. 342, Cr.P.C.---Effect---Where the accused was not questioned at all or his attention to an important piece of evidence was not invited, the omission so made was an incurable illegality and fatal.

Ashraf v. The State 2004 PCr.LJ 42; Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 and State of Maharashtra v. Sukhdeo Singh 1992 Cr.LJ 3454 ref.

Hafeezullah Khan for Appellant.

Qudratullah Khan Gandapur, Assistant A.-G. for the State.

2019 P Cr. L J 401

[Peshawar]

Before Lal Jan Khattak and Shakeel Ahmad, JJ

BILAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 132 of 2015, decided on 28th June, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons made indiscriminate firing on the sons of complainant from their firearms, due to which his sons were hit and expired on the spot---Motive, as alleged in the FIR, was dispute over women folk---Ocular account of the occurrence was furnished by complainant, his wife and his grandson---Record showed that the residential addresses recorded in the statement of both the prosecution witnesses were far away from the scene of crime---Neither the Investigating Officer had taken the pain to verify the place of their residence nor the witnesses provided anything in black and white to show that in fact they were residing at the addresses given in the FIR during the days of occurrence and after occurrence they had abandoned their residence from the said village---Admittedly, both the witnesses were residing in different places, as reflected from their residential addresses recorded in their statements---Both the witnesses had deposed that on the day, and time of occurrence, they were going to place "P", but they did not give any reason for going there---Complainant had admitted in the cross-examination that he had a shop at place "P" during the days when occurrence took place and his grandson/witness was studying there---Prosecution had failed to bring anything on record to show as to for what purpose complainant and witness had come to the village and accompanied the deceased and wife of complainant from place "P" on the day of incident---In the absence of such proof the eye-witnesses could be held to be chance witnesses, as on the day of incident, the complainant was busy in a shop at place "P" and his grandson/witness was studying and residing there, which was several miles away from the scene of crime---Murasila of initial report did not show the nature and description of weapon by the complainant and said fact was admitted by the witness as well as Investigating Officer in their statements---None of the witnesses and complainant, were cited as identifier of the dead bodies in the inquest report and post-mortem report of the deceased---Said glaring omission casted serious doubt about the presence of the two self claimed eyewitnesses at the spot---Complainant, his wife and grandson were in the firing range of the accused, as was evident from the site plan but the accused did not fire at them and spared them to become eye-witnesses against them, having same degree of motive against them as alleged by the prosecution---Said situation supported the contention of defence that the eye-witnesses were not present at the spot---Record transpired that the sister of marginal witness to the recovery memo vide which the Investigating Officer took into his possession the blood-stained earth and crime empties from the spot, was married with the deceased---Said fact was admitted by the complainant in his cross-examination---Said witness was SHO during the days of occurrence and defence had alleged that the entire investigation was carried out at his behest---Circumstances established that prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted, in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chance witness---Scope---Testimony of chance witness ordinarily, was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---In normal course, the presumption under the law would operate about his absence from the crime spot---In rare cases, the testimony of chance witness might have been relied upon, provided some convincing explanation appealing to prudent mind for his presence on the crime spot were put forth, when the occurrence took place, otherwise, his testimony would fall within the category of suspected evidence and could not be accepted without a pinch of salt.

Khalid Javed and another v. The State 2003 SCMR 1419; Javed Ahmad alias Jaida v. The State 1978 SCMR 114; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Imran Ashraf and others v. The State 2001 SCMR 424; Zafar Hayat v. The State 1995 SCMR 896; Allah Ditta v. The State 1999 YLR 1478 and Muhammad Akram v. The State 2008 PCr.LJ 993 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon from the accused---Reliance---Scope---Record showed that a Kalashnikov was allegedly recovered from the possession of accused---Recovered seventeen empties of 7.62-bore along with Kalashnikov were sent to Forensic Science Laboratory to ascertain as to whether said empties were fired from the Kalashnikov allegedly recovered from possession of the accused or not---Report was received in negative, therefore, it was of no help to the prosecution, as it had not been proved that the Kalashnikov was used in the commission of offence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---Motive as given in the FIR for the commission of offence was vague and hazy and had not been disclosed with full details---Neither the complainant, nor his grandson/witness unfolded the details of motive in their statements before the court---Said fact alone injected element of falsehood regarding the alleged motive as setup in the FIR.

(e) Criminal trial---

----Motive---Scope---Prosecution is not required to disclose/setup a motive, but once it chooses to do so then it become its obligation to prove the same by cogent evidence---Failure to do so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for the prosecution case.

(f) Criminal trial---

----Absconsion of accused---Effect---Absconsion could be used as corroborative piece of evidence, which could not be read in isolation---Absconsion had to be read along with substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. The State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 3004; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 rel.

Sohail Akhtar for Appellant.

Ms. Nazia Irfan for the State.

Hizar Hayat Daudzai for the Complainant.

2019 P Cr. L J 438

[Peshawar]

Before Qalandar Ali Khan, J

RASHID and 2 others---Petitioners

Versus

ALI ZAMAN and 2 others---Respondents

Criminal Revision No. 74-P of 2018, decided on 19th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 356---Recording of evidence in absence of Presiding Officer of Court---Scope---Petitioner assailed order of Trial Court whereby it discarded the statement of complainant, which was recorded in the absence of Presiding Officer of Trial Court---Held; statement of complainant was not recorded by the Presiding Officer of Trial Court as he was not present in the Court at that time---Statement recorded in the absence of Presiding Officer of Trial Court, even in the presence of counsel for the complainant and Public Prosecutor would not be worth consideration under the law---Trial Court was perfectly justified in declining request of the petitioner to make statement of the complainant recorded in the absence of the Presiding Officer part of the record---Revision was dismissed.

Muhammad Riaz for Petitioners.

Wilayat Khan, AAG assisted by Aziz-ur-Rehman for Respondents.

2019 P Cr. L J 457

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

Pir NOROZ ALI SHAH---Appellant

Versus

The STATE---Respondent

J. Cr. Appeal No. 165-A of 2012, decided on 30th November, 2017.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S. 13---Kidnapping for ransom, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the son of complainant for ransom---Record showed that the entire edifice of the prosecution case against the accused persons rested on the raid conducted by the Police Officials to the house which was in possession of absconding accused wherefrom not only the abductee was recovered but the present accused was also arrested who during investigation, disclosed the name of co-accused---Prosecution had produced two witnesses in support of the raid---Witness of the raiding party had stated that two teams were constituted for the search of abductee---No daily diary of the police station had been produced to establish the constitution and departure as well as arrival of the raiding team---Production of daily diary of the police station showing the departure, constitution of raiding team, its members and subsequent arrival, was a material piece of evidence in favour of the prosecution---Non-production of the daily diary had caused serious doubts in the prosecution case regarding the mode and manner of the raid---Prosecution witness had disclosed in his statement that abductee at the time of recovery was blind folded with black coloured cloth, he unfolded the cloth and upon inquiry, abductee had disclosed his name---Similarly, other prosecution witness in his statement had stated that one black coloured piece of cloth which was tied on the eyes of the abductee was also taken into possession---However, when the abductee himself appeared as witness, he had stated in his cross-examination that at the time when he was recovered by the police his eyes were not covered---Prosecution had stated that present accused was arrested because while jumping from the house, he sustained injury on his ankle and left hand, therefore he was unable to run and was apprehended---Accused was examined by the Medical Officer, who found swelling on his left ankle with scratches thereon and on the back of left hand with swelling---Medical Officer, in cross-examination, had stated that he had not given the duration of the injuries---Medical Officer had also confirmed that there was a possibility that the injuries might have been caused with blunt weapon/object---Injury on the body of accused, was of no help for prosecution---Record showed that the raiding party remained on the spot for sufficient time, waiting for arrival of the Investigating Officer; however, during the said period, they had not associated anyone from the neighbourhood as a marginal witness to the search of the house and the pointation allegedly made by the present accused leading to the recovery of abductee---Prosecution had not furnished reasonable justification that an effort was made to cite the private witnesses from the locality which was thickly populated---In the present case, prosecution had not produced Police Officer who was allegedly heading the raiding party and the lady constable who was present on the spot to ensure that the search and recovery was made in the manner and mode as narrated by the prosecution---Prosecution, in circumstances, had remained unsuccessful in establishing the manner and mode of the recovery of the abductee as a result of search conducted by a team and arrest of the accused---Record transpired that identification parade was conducted after the delay of one month of the arrest of accused---No role of the accused had been specified---Abductee when appeared as witness before the court had assigned role of each of the three accused in his statement which indeed was improvement and was inadmissible in evidence---Demand of ransom by the accused persons or on their behalf had also not been established at the trial---Complainant had informed the police on the following day of the occurrence that from the cell phone of his son/abductee, Rs. fifty million were demanded as ransom, however, the police had failed to collect the call data from the relevant cellular company to establish telephonic call from the mobile number which was in use of abductee---Abductee had also confirmed/admitted in his cross-examination that in his presence the accused did not call his father for ransom, however, he had stated that they did mention many times to him in clear words that he was abducted for ransom---Lapse on behalf of the prosecution to have retrieved/collected the call data was sufficient to disbelieve the demand of ransom---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Abdul Sattar and others v. The State 2002 PCr.LJ 51; Atta Ullah v. The State 2017 PCr.LJ 1992 and Mst. Mehboob Bibi and others v. The State 2017 SCMR 1835 rel.

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

----S. 164---Judicial confession---Retracted---Scope---Confession, which had been retracted by the accused, must be established by the prosecution that the same was true, voluntary, inculpatory and in line with the other prosecution evidence---Where there were more than one accused who had made the confession, the said confession was not mutually contradictory---Mere long custody of the accused making confession with the police per se was no ground to disbelieve confession when otherwise the same on the face of it appeared to be true, voluntary and was supported by the circumstantial evidence.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 164---Kidnapping for ransom, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Judicial confession---Retracted---Scope---In the present case, accused was arrested on 2.11.2010 and made the confession on 12.11.2010, and had stated that absconding accused and co-accused de-boarded the abductee from his jeep; one co-accused was arrested on 11.11.2010 who made confession on 26.11.2010; yet another accused was arrested on 21.11.2010 and made confession on 8.12.2010 and both of them also repeated the same story---Despite the fact that abductee had identified the accused in court as well as in the identification parade, which was conducted on 23.12.2010, however, he did not utter a single word about the role of co-accused, who according to his confessional statement de-boarded him from his jeep at the time of his abduction---When the present accused before making confession remained in the custody of police for ten days; one co-accused for fifteen days and other co-accused for eighteen days, the Judicial Magistrate was duty bound to have provided sufficient time to the said accused persons before recording their confession---Certificate provided by the Judicial Magistrate along with the confessional statement of the accused showed that only thirty minutes were given to each accused for thinking before recording their confessional statement---When the accused had remained in the custody of police and at two occasions they were produced before the Magistrate who granted their further custody to the police, thirty minutes time to the accused for thinking before making confession did not appear to be sufficient time---Record was silent that earlier, when the accused were produced before the Judicial Magistrate, why further custody was given to the police and at that time the confession was not made---Defence had produced some press clipping that co-accused had voluntarily surrendered before the police and had stated in press conference that he was compelled to surrender as their women folk were arrested by the police---Circumstances suggested that the confession of all the accused persons was not voluntary and true, resultantly the confessions of all the accused had no evidentiary/legal worth to be relied upon and accordingly excluded from consideration, particularly, when the accused persons had not only retracted the confessions at the trial but the same were also self-contradictory on material points.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Art. 22---Test identification parade---Requirements---Holding of identification parade indeed was not the requirement of law but one of the methods to test the veracity of the evidence of eyewitnesses who had occasion to see the accused and claim to identify him---Sole purpose of identification parade was to ensure that innocent person, either deliberately or mistakenly was not involved in a case---Identification parade though was not a legal requirement, however, when necessary, it was the duty of the court to examine that all possible steps were taken for holding fair identification parade and the witness at their own correctly picked up the culprits.

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

----Art. 22---Test identification parade---Scope---If the accused was identified during identification parade without reference to any role played by him in the incident; such identification parade was of no evidentiary value.

Hakeem v. The State 2017 SCMR 1546; Muhammad Yameen v. The State 2009 SCMR 84; Arif Masih v. The State PLD 2001 SC 398 and Lal Pasand v. The State PLD 1981 SC 142 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit if so crept from the evidence must be given to the accused as a matter of right and not as a matter of grace.

Mohammad Akram v. State 2009 SCMR 230 and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Munir Hussain and Javed Iqbal Gulbela for Appellant.

Yasir Zahoor Abbasi, AAG for the State.

2019 P Cr. L J 535

[Peshawar]

Before Rooh-ul-Amin Khan and Abdul Shakoor, JJ

HARIS NASIM alias KHALID and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 801-P and 751-P of 2017, decided on 31st October, 2018.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of father of the complainant---Record showed that occurrence took place on 22.3.2016 at 7.30 p.m., which was reported by complainant at 8.00 p.m.---Admittedly, complainant was not eye-witness of the occurrence---Report of complainant showed that it was his cousin, who on the report of fire shots, came out from the house and witnessed the culprits decamping from the spot by a motorcycle/taxi---Complainant had not mentioned that occurrence was narrated to him by his cousin---Features and descriptions of the culprits were not disclosed by complainant in his report---Driver of the taxi motorcar who dropped the deceased at the spot was important impartial witness but he had not been cited as a prosecution witness---Prosecution witness, a lady, who allegedly was residing in basement of the house of brother of deceased on rental basis was got examined under S. 164, Cr.P.C., but, later on, she abandoned her abode from the said house---Cousin of complainant, who allegedly witnessed the culprits decamping from the spot, were also abandoned by the prosecution for no good reason---Adverse inference within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984, would be drawn against the prosecution that had the said witnesses been produced they would have not supported the prosecution case---Record showed that it was an unseen occurrence, as none had come forward to furnish the ocular account---Complainant in his statement recorded under S. 164, Cr.P.C. on 1.4.2016 had charged the accused persons by name for the first time, but as per arrest card of accused, he had been shown arrested on 31.3.2016, a day prior to the statement of complainant---Complainant while appearing as witness had said anything about recording of his any supplementary statement under S. 161, Cr.P.C., meaning thereby that after arrest of the accused, the complainant charged him at the instance of police---Co-accused had been shown arrested on 1.4.2016, whereas, confessional statements of accused had been recorded on 7.4.2016 and that of co-accused on 8.4.2016 i.e. on 8th day of their arrest---During the said period of 8 days, the accused persons admittedly remained in police custody---Record divulged that co-accused being juvenile had submitted application to the Justice of Peace through his father on 18.5.2016, on the ground that he had been arrested by the CTD on 29.3.2016 in the present case, but his arrest had been shown on 1.4.2016, as well as that during custody he was subjected to torture, which resulted into paralysis of his both hands---On the said application, matter was referred to Standing Medical Board for examination; on receiving positive report, the Justice of Peace while accepting the application directed registration of FIR against the Investigating Officer---Said order of the Justice of Peace was challenged through a writ petition, which was pending adjudication---Said fact indicated as to how the minor accused was dealt with during custody and how confession was extracted from him---Confessional statements of the accused persons revealed that those were ditto copies of their statements recorded by the Investigating Officer under S. 161, Cr.P.C.---Confessional statements of both the accused were also the same with slight variation of names, recorded by the Judicial Magistrate---Accused persons, in their confession, had not specifically disclosed the date, day and time of the occurrence---No crime weapon had been recovered on the pointation of the accused persons---Confessional statements of accused persons recorded by the Judicial Magistrate, in the light of the peculiar facts and circumstances, being involuntary and result of torture, was the most suspicious piece of evidence in the whole case, besides being retracted---Record proved that co-accused had been taken into custody by police on 29.3.2016, whereas his arrest had been shown on 1.4.2016---Record revealed that the co-accused at the time of occurrence was a matric student, and he was to appear in the examination scheduled by the Board of Intermediate and Secondary Education w.e.f. 15.3.2016 to 2.4.2016---No crime weapon had been recovered either from direct or indirect possession of the accused persons or on their pointation, therefore, positive Forensic Science Laboratory report with regard to seven crime empties and a spent bullet of .32-bore having been fired from one and the same weapon would not advance the prosecution case---Data of mobile SIMs of the accused persons, which could only be sufficient to show contact of the numbers, but without any solid proof in respect of conversation made by the accused persons on the phone with regard to hatching conspiracy or committing the crime, would not be sufficient to be made a basis for their conviction---Recovery of blood from the spot and the bloodstained garments of the deceased coupled with post-mortem report might have proved the unnatural death of the deceased with firearm, but by no stretch of imagination these pieces of evidence could tell the names of the culprits---Circumstances established that prosecution had failed to prove its case against the accused through cogent and confidence inspiring ocular or circumstantial evidence beyond shadow of reasonable 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.

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

----S. 164--- Confession--- Retracted---Scope and requirements for acceptance---Retracted confession, if corroborated by independent evidence of reliable nature, could be made basis for conviction on a capital charge, but it must be subject to thorough judicial scrutiny---For accepting a confession, two essential requirements must be fulfilled i.e. the confession was made voluntarily, it was based on true account of facts leading to the crime and the same was proved at the trial.

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

(c) Criminal trial---

----Circumstantial evidence---Scope---Any missing link in the chain in case of circumstantial evidence would destroy the whole and would render the same unreliable for recording a conviction on a capital charge.

Muhammad Aslam v. The State PLD 1992 SC 254 and Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.

Azhar Iqbal v. The State 2013 SCMR 383; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Hussain Ali and Ishfaq Ahmad Afridi for Appellants.

Rab Nawaz Khan, AAG for the State.

Sahibzada Riazat ul Haq for the Complainant.

2019 P Cr. L J 640

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

Inspector Syed RAHIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 17-P of 2013, decided on 11th December, 2018.

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

----Ss. 25 & 27---Police Rules, 1934, R.25.2(3)---Defective and improper investigation---Awarding of symbolic punishment by Anti-Terrorism Court---Appeal---Scope---Symbolic punishment of fine of Rs.10,000 was awarded to appellants/Police Officers for conducting improper and defective investigation in a criminal case of kidnapping for ransom---Accused were acquitted and the Police Officers were punished after giving notices for conducting deffective investigation---Validity---Record showed that the local police neither registered the FIR nor order of the Magistrate for conducting enquiry was obtained---Even record of the enquiry was not made available so as to ascertain as to what proceedings were conducted by the Police Officer who was entrusted with enquiry---Such conduct of the Police Officer gave rise to the suspicion that he might have suppressed material facts and evidence which could lead to conviction of the accused---Zamima and fard khulasa dated 1.3.2012 showed production of accused before the Judicial Magistrate within 8.30 to 1200 hours, wherefrom their judicial remand was obtained and they were handed over to jail authorities---Record of the case falsified the said facts showing the arrest and recovery at 16.40 hours on 1.3.2012, thus created doubt about its authenticity---SHO handed over motorcars to the DSP immediately after the alleged recovery, without a court order or proper procedure---Handing over the cars to a Police Officer who had nothing to do with investigation of the case was not only misconduct but also a criminal offence by the Police Official---Police failed to enquire and collect evidence about the fact of abduction of abductee in the area where he was allegedly carring out business of cloth---Said Officer had failed to bring the enquiry file on the judicial record in order to ascertain the whole proceedings conducted since abduction of abductee till the date of registration of FIR---Circumstances established not only dereliction in duty but also misconduct and commission of criminal offence of breach of trust on the part of the accused Police Officers entrusted with investigation of the case, making them liable not only to summary proceedings, but also disciplinary action---Appeal was dismissed accordingly.

Syed Abdul Fayaz and Bashir Ahmed Khan for Appellant.

Muhammad Riaz Khan, AAG for the State.

Date of hearing: 11th December, 2018.

2019 P Cr. L J 777

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

ABDUL HASSAN---Appellant

Versus

The STATE and 6 others---Respondents

Criminal Appeal No. 19-A of 2018, decided on 29th November, 2018.

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

----Ss. 302, 324, 506, 148 & 149---Criminal Procedure Code (V of 1898), S. 417(2A)---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, rioting armed with deadly weapon and common object---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused persons were charged for indiscriminate firing on the complainant party---Occurrence was allegedly committed at 14:30 hours and the report was lodged on the spot at 17:30 hours, after the delay of three hours, whereas, the police station was situated at a distance of 8/9 km from the spot---Circumstances suggested that case was registered after preliminary investigation, due deliberation and consultation---No independent witness had been produced despite the fact that occurrence had taken place on a busy road---Complainant was injured and he attributed the role of firing to each of the accused persons with precision---Where indiscriminate firing was being made by three persons, no one could distinguish their role with exactitude as to whose fire shot hit to whom---Investigating officer had recovered empties from the spot where one accused person was standing---No empty was recovered from the spot where other accused persons were alleged to be standing---Recovered empties did not match with the firearms recovered from the possession of two accused persons---Postmortem examination of the deceased was not conducted due to tradition in vogue---Injuries on the person of witnesses were not caused with firearms, thus the presence of witnesses on the spot at relevant time became doubtful---Contradictions and discrepancies in the statements of the prosecution witnesses led to obvious inference that it was an unseen occurrence and accused persons were charged due to previous enmity---Trial court had not committed error in acquitting the accused persons by extending the benefit of doubt---Appeal against acquittal was dismissed, in circumstances.

Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007 rel.

2017 SCMR 1710 and 2017 SCMR 1639 ref.

(b) Criminal trial---

----Benefit of doubt---Even a single doubt, if found reasonable, is sufficient to justify acquittal of accused.

Syed Waqas Naqvi for Appellant.

Yasir Zahoor Abassi, A.A.-G. for the State.

2019 P Cr. L J 886

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

NAIK MUHAMMAD and 3 others---Petitioners

Versus

AHMAD YAR KHAN and another---Respondents

Criminal Miscellaneous No. 77-B of 2018 in Criminal Appeal No. 217-B of 2010, decided on 18th February, 2019.

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

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possessing and trafficking of narcotics---Suspension of sentence---Scope---Four persons who were convicted under S. 9(c), Control of Narcotic Substances Act, 1997 sought suspension of their sentences---Validity---Admittedly, one of the lady accused at the time of her arrest was accompanied by one minor daughter; she was pregnant of 28 weeks and during captivity gave birth to a male child; second lady accused was accompanied by two daughters at the time of her arrest; third lady accused, as per her counsel, was old and infirm---Accused ladies were only sentenced for five years, which was a short sentence and there was no likelihood of appeal being taken up in near future---So far as male accused was concerned, perusal of facts and judgment led to the conclusion that judgment on the face of it, did not suffer from any legal error---Petition for suspension of sentence was partially allowed to the extent of all three lady accused, their conviction and sentence was suspended till final adjudication of appeal---Prayer of male accused for suspension of sentence was declined.

Hazoor Bakhsh v. Federation of Pakistan PLD 1981 FSC 145 fol.

Mst. Nusrat v. The State 1996 SCMR 973; Liaqat and another v. The State 1999 PCr.LJ 1004; Mst. Nasree v. The State 1998 MLD 1350; Mst. Ansar Jan v. The State and another 2000 PCr.LJ 586; Nazar Ahmad and 2 others v. The State 2005 PCr.LJ 657; Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589; Ilyas alias Billu v. The State 2008 MLD 312 and Mehmood Iqbal v. The State 2008 MLD 1376 ref.

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

----Ss. 426, 496 & 497---Suspension of sentence---Bail---Release of convict during pendency of appeal---Scope---Appellate Court has power to suspend the sentence of a convict and release him on bail---Such power to grant bail is not fettered by the provisions of S. 497, Cr.P.C.---Principles provided in Ss. 496 & 497, Cr.P.C. have to be borne in mind in granting or refusing bail.

The State v. Shah Sawar 1969 SCMR 151 and Bahadar Khan v. The State 1969 SCMR 81 ref.

Iftikhar Ahmad Durrani for Appellants.

2019 P Cr. L J 899

[Peshawar]

Before Rooh-ul-Amin Khan, J

MAZHAR ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. B.A. No. 2598-P of 2018, decided on 28th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 367A, 377 & 511---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss. 44 & 53---Juvenile Justice System Act (XXII of 2018), Ss. 6, 2(b), 2(m) & 2(o)---Kidnapping or abducting in order to subject person to unnatural lust and attempt to commit offence---Bail, grant of---Further inquiry---Cruelty to a child and sexual abuse---"Major offence"---"Minor offence"---Defined---Release of a juvenile on bail---Accused below the age of 18 years was charged for attempt to commit unnatural offence with a boy aged 13 years---No specific allegation of commission of sodomy was raised against the accused---Accused was only charged for an attempt to commit sodomy---Complainant was not an eyewitness of the occurrence---No one from the public, who allegedly attracted to the spot, came forward to substantiate the version of complainant---Neither any Medico-legal Report of alleged victim was available to show any bruises, scratches or signs of violence on victim's body nor any torn clothes of the victim had been taken into possession so as to substantiate version of the complainant in respect of forcible drag of the victim---Applicability of S. 367A, P.P.C. was a serious debatable question; in the absence of any proof of penetration which was an essential ingredient to constitute the offence of sodomy, applicability of S. 377, P.P.C. was also a matter of further inquiry---Petitioner was admitted to bail, in circumstances.

Shabbir Hussain Gigyani for Petitioner.

Arshad Ahmad, A.A.G. for the State.

Syed Abdul Fayyaz for the Complainant.

2019 P Cr. L J 941

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

NAYYAR ABBAS JAFFARI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWAthrough Secretary Khyber Pakhtunkhwa Home and Tribal Affairs Department and 4 others---Respondents

Writ Petition No. 1050-A of 2016, decided on 31st October, 2018.

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

----S. 11-EE & Fourth Sched.---'Proscribed person'---Placing of name on Fourth Schedule to Anti-Terrorism Act, 1997---Legality---Name of petitioner was placed on the list of proscribed persons under the Fourth Sched., Anti-Terrorism Act, 1997---Record showed that the names of petitioners were listed in Fourth Schedule of Anti Terrorism Act, 1997 on the grounds that they were associated with the sectarian activities---Section 11-EE(2)(a) of the Act, described that the Authority/Federal Government must fulfil the pre-requisites as provided in subsection (1)(a), (b) & (c) of said section, before listing the name of any person in the Fourth Schedule of the Act---Said inclusion of the name could not exceed beyond period of three years, as envisaged in subsection (2)(a) of S. 11-EE of the Act---In the present case, names of the most of petitioners were included in the said list in the year, 2014 and they all executed bond of good behaviour, as required under the law---Statutory period of three years had already expired, therefore, the names of the petitioners could not be allowed to remain in the said list for indefinite period, as the same was against the provision of law---Constitutional petitions were allowed, in circumstances.

Ghazanfar Kazmi's case PLD 2017 Pesh. 105 rel.

Muhammad Ilyas Khan for Petitioner.

Yasir Zahoor Abbasi, Assistant Advocate-General and Syed Hammad Hussain Gilani, Assistant Attorney-General for Respondents.

2019 P Cr. L J 979

[Peshawar]

Before Rooh-ul-Amin Khan and Qalandar Ali Khan, JJ

KHYBER KHAN---Appellant

Versus

SHAHID ZAMAN and another---Respondents

Criminal Appeal No. 109-P of 2004, decided on 24th January, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Accused was charged for the murder of deceased---Ocular account was furnished by eye-witness/real brother of the deceased then injured/complainant---Statement of eyewitness was got recorded during trial under S. 512, Cr.P.C.---Complainant had died at the time of trial of the accused, therefore, his statement was transposed---Statement of said witness though was in line with the story mentioned in the FIR, however, site-plan and medical evidence negated the same---Accused had been shown in the site plan on the rooftop of the house of deceased having height of more than 10-1/2 feet---Deceased had been shown in front of the house of his relative---If height of an average man was added with the height of roof, it would come to 15/16 feet---Direction of firearm entry wound on the person of the deceased, in circumstances, should have been from upward to downward but to the contrary the deceased had sustained firearm entry wound in the pubic region with corresponding exit on his left buttock depicting travel of missile as through and through---Neither any crime empty nor any blood had been shown recovered from the spot despite the fact that according to post-mortem report the cause of death of the deceased was profuse bleeding---Said aspect made the prosecution case highly doubtful---Relative whose house had been allegedly visited by the deceased and the purported eyewitness had not been examined---No inmate of his house had been produced as a witness in support of establishing the presence of the deceased and the purported eyewitnesses at the spot---Occurrence took place at about 10.15 a.m., which had been reported at 10.45 a.m. at police station---Medico-legal Report showed that deceased, then injured had been shown received in the hospital at the time of report i.e. 10.45 a.m.---Presence of the deceased then injured at the same time on two different places was quite astonishing which not only spoke volumes about the behaviour and demeanor of the police but also that of the Medical Officer---Report about the occurrence was made at police station by the deceased then injured which was recorded by SHO---Not only the facts as to who brought the deceased, then injured, to the hospital and who accompanied him to police station, were shrouded in mystery---Prosecution evidence was pregnant with doubts, contradictions and discrepancies, benefit of which would be extended to the accused--- Appeal against acquittal was dismissed in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Accused was charged for the murder of deceased---Record showed that scribe of FIR had failed to note down a single word in the FIR that deceased then injured was conscious and perceiving the surroundings at the time of making report---Deceased allegedly shifted to the hospital, was examined by Medical Officer but the alleged dying declaration of the deceased, then injured, did not bear the endorsement of any Medical Officer to the effect that he was conscious, well oriented in time and space and capable to make statement---Medical report of the deceased then injured was also silent about the factum of his orientation in time and space and his capability to make statement---Neither the FIR nor the medical evidence nor other circumstances, much less strong, independent and reliable, corroborated the alleged dying declaration---Dying declaration, therefore, had been rightly not relied upon by the Trial Court.

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

----Art. 46--- Dying declaration--- Ingredients---Prosecution had to establish through cogent evidence that the dying man was in full senses, conscious, alert to the surroundings, fully oriented in time space and able to make a coherent statement---Doctor present at the occasion would give a fitness certificate about the condition of a dying man.

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

----Art. 46---Dying declaration---Evidentiary value---Dying declaration by itself was not strong evidence being not tested by way of cross examination---Only reason for accepting the same was the belief phenomenon of the court of law that a person apprehending death, due to injuries caused to him, was ordinarily not expected to lie---To believe or disbelieve a dying declaration, was thus left to the ordinary human consideration---Strong, independent and reliable corroborative evidence was required for the sake of safe dispensation of justice---Relying blindly and without proper scrutiny on a dying declaration, would be no less dangerous approach on the part of the court.

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

----S. 417---Appeal against acquittal---Scope---If accused was acquitted by competent court of law, he earned the presumption of double innocence, which could not be disturbed by the appellate court unless it was established through cogent and tangible evidence available on record that such acquittal was fanciful, erroneous or had resulted into grave miscarriage of Justice.

2004 SCMR 249; 2009 SCMR 288 and 2009 SCMR 946 rel.

Mian Muhib Ullah Kakakhel for Appellant.

Muhammad Riaz Khan, AAG for the State.

Ijaz Ahmad Nowshervi for Respondent.

2019 P Cr. L J 1014

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

AKHTAR ZAIB---Appellant

Versus

The STATE---Respondent

J. Cr. Appeal No. 134-A of 2011, decided on 10th October, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Criminal Procedure Code (V of 1898), S. 164---Appreciation of evidence---Retracted judicial confession---Scope---Accused was charged that he along with co-accused committed murder of the deceased---Record showed that accused in the confessional statement had not disclosed any clear motive which prompted them to commit the murder of the deceased---Accused had stated that after selling his property, the deceased had asked them to do business with the sale proceeds---When deceased was ready to do a joint business from the sale proceeds of a property, then what was the reason for killing him was a question which found no answer on record---Post-mortem report of the deceased revealed that he had only one injury on his head, while the accused in his confessional statement had stated that three injuries with the blows of axe were inflicted to the deceased---Accused had also stated in his confessional statement that Rs. 2,00,000 were taken out from the pocket of deceased by co-accused, out of which, Rs. 80,000 were paid to him---However, during course of investigation, said amount could not be recovered from any of the accused---Accused had stated that after the occurrence they went to the house of co-accused, who asked him to take the axe and thereafter the accused left for another city---Accused had not stated that prior to leaving for another city, he had visited his house and left the axe there---Entire facts disclosed by the accused in his confessional statement were contradictory to the evidence available on record---Accused was arrested in the instant case in injured condition and was got examined through medical officer and his medical report was available on the file---Judicial Magistrate/witness had stated that he was unaware as to whether the accused had any apparent injury on his body---Circumstances, the manner and mode the confession of the accused was recorded, which was subsequently retracted, must be supported by some connecting/corroborative evidence---Circumstances established that prosecution had failed to prove its charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

State v. Waqar 1992 SCMR 850; Nazir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement---Scope---Record showed that accused was produced before the Judicial Magistrate at 1.30 p.m. for recording his confessional statement---Statement of Judicial Magistrate showed that only thirty minutes time was given to the accused to think over his confession---However, the confessional statement of the accused was concluded at 1.45 p.m.---Said circumstances showed that accused was not given proper time nor any satisfactory measures were adopted prior to recording the confession of the accused and the same was recorded in cursory manner---Confessional story of the accused did not appear to be true and voluntary, in circumstances.

Muhammad Parvez and others v. The State 2007 SCMR 630 rel.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Delay in recording the confession of accused---Effect---Confessional statement of the accused was recorded after the delay of four days, which could not be made basis for conviction of the accused.

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

----S. 164---Confessional statement of accused---Scope---Conviction could be awarded to the accused on the basis of sole confession, however, for that the confession must be voluntary, true, without any inducement, fear and coercion.

Manjeet Singh v. The State PLD 2006 SC 30 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that recovery of crime weapon (axe) was shown from the house of the accused---Admittedly, accused was not present at the time of alleged recovery---Investigating Officer had raided the house of accused in absence of any lady constable---No one from the family of the accused had come forward to disclose that recovered crime weapon belonged to the accused---Investigating Officer could not bring on record any documentary evidence showing that the house wherefrom the alleged axe was recovered was that of accused---Record transpired that there was nothing regarding matching or grouping of the blood on the crime weapon with the blood on the clothes of the deceased as well as blood recovered from the spot---Circumstances established that prosecution had failed to prove that the recovered axe was the actual crime weapon in the present case.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect---In the present case, the alleged motive was that the accused wanted to grab the sale proceeds of the property of deceased and deceased was not willing to pay some money to the accused---Record transpired that deceased had joint property with the witnesses and had no joint property with the accused---Deceased was willing to do joint business with accused from the sale proceeds of his property, as such the motive advanced by the prosecution was not appealing to a prudent mind---Nothing on record to show that accused wanted to grab the sale proceeds of the property of deceased and deceased was not willing to pay some money to the accused---Motive had not been proved, in circumstances.

Owais Abbasi for Appellant.

Yasir Zahoor Abbasi, AAG for the State.

2019 P Cr. L J 1047

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

MEHMOOD ALAM---Appellant

Versus

HIDAYATULLAH and others---Respondents

Criminal A. No. 40-D of 2012, decided on 4th December, 2018.

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

----S. 417---Appeal against acquittal---Scope---Acquitted accused could be brought into barriers of jail, when the acquittal order proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law.

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

----S. 417(2-A)---Appeal against acquittal---Double presumption of innocence---In case of acquittal, accused is credited with two advantages, one that is available to him of his innocence at the pre-trial stage and the other which was earned by him on the basis of judgment of acquittal.

Ahmad v The Crown PLD 1951 FC 107; Fateh Muhammad v. Bagoo and others PLD 1960 SC 286; Abdul Majid v. Superintendent and Remembrance of Legal Affairs, Government of East Pakistan PLD 1964 SC 422; Feroz Khan v. Captain Ghulam Nabi Khan and another PLD 1966 SC 424; Usman Khan and others v. The State PLD 1969 SC 293; Noora and another v. The State PLD 1973 SC 469; Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234; Farid v. Aslam and 4 others PLD 1977 SC 4; Ali Sher v. The State and 3 others PLD 1980 SC 317; Mst. Habibunnisa alias Mst. Bivi v. Zafar lqbal and another 1981 SCMR 95; Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474; State through Advocate General, N.W.F.P. Peshawar v. Amir Nazar and others PLD 1981 SC 286; Nazir Ahmad v. Muhammad Din and others 1981 SCMR 415; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Khan v. Sajjad and 2 others 2004 SCMR 215; Mst. Moodan v. Saifullah and 2 others 2004 SCMR 923; Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209; Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427; Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 and Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 rel.

(c) 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---Accused and his co-accused were charged for the murder of brother of the complainant---Motive as alleged was that the accused was stopped from taking electric connection from the transformer---Complainant/ brother, cousin and father of deceased were cited as eyewitnesses of the incident---Record showed that presence of complainant and cousin of deceased on the spot was not natural---If they were present at the spot, they would have received some injuries by the bullets fired at them by the accused---Father of the deceased was given up on the pretext that he was witness of the same fact and unnecessary---Question of declaring father of deceased as unnecessary was not right as being a father he was closely related to the deceased---Non appearance of the father of deceased as witness showed that he was not going to support the prosecution story, which definitely created a lawful presumption against the prosecution that he would have not deposed in favour of the prosecution if produced---No impartial evidence had come from the neighbourhood to corroborate the prosecution case, which of course could have been available due to noise of fire---Production of only interested and interrelated persons as witness out of whom one refrained from appearing as witness to support them, did not inspire confidence---Appeal being bereft of merits was dismissed, in circumstances.

(d) 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 as alleged was that the accused was restrained from taking electricity connection from the transformer by the complainant---Record showed that accused came to the complainant on the day of incident, slapped on his face, thereafter, left the place and came back with his brother duly armed with Kalashnikov and fired at them---Complainant, his father and cousin escaped unhurt without receiving a scratch in the incident though they were empty-handed at the time of incident and were totally at the mercy of the accused---Said witnesses were left alive and accused selected to kill the brother of the complainant with whom they had no direct motive---Motive had not been proved, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sending the recovered empties to the Forensic Science Laboratory at belated stage---Effect---Record showed that five empties of 7.62-bore recovered from the spot were sent to the Forensic Science Laboratory, where it was opined that said empties were fired from different weapons---Empties were recovered from the scene of crime on 22.10.2008 but sent to the Forensic Science Laboratory on 8.11.2002, admittedly, after sixteen days of the incident---No plausible explanation was offered by the prosecution for sending the empties to Forensic Science Laboratory with inordinate delay---Record was even silent as to who took the empties to Forensic Science Laboratory, even otherwise the same being corroborative in nature and if substantive charge was not proved, it would be of no help to prosecution.

(f) Criminal trial---

----Abscondance---Scope---Abscondance could not be made basis for conviction, because people do abscond out of fear to be killed in retaliation and to avoid torture at the hands of police.

Muhammad Sadiq v. The State 2017 SCMR 144 and Rohtas Khan v. The State 2010 SCMR 566 rel.

Saif-ur-Rehman Khan and Muhammad Saeed Bhutta for Appellant.

Muhammad Ismail Alizai for Respondent No.1.

Adnan Ali, Assistant A.-G. for the State.

2019 P Cr. L J 1073

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

ASMATULLAH KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal A. No. 249-B of 2017, decided on 22nd January, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Accused was charged for committing murder of son of complainant---Occurrence had been furnished by the father/ complainant and sister of the deceased---Both were consistent on the point of lack of motive or previous ill-will or enmity between the parties---Information of murder was given by the sister of deceased as disclosed by complainant---Witness/sister of deceased had stated that phone call of accused was received on the mobile phone of deceased as they were friends but no covert or overt act was brought forth to suggest involvement of the accused in the murder of deceased---Receiving a phone call ipso facto was not a incriminating act for conviction, provided it was coupled with other incriminating circumstances as recovery of crime weapon duly matched with empty recovered from the spot, proved to be fired from the crime weapon---Preparation of site plan on the pointation of accused too was not proved through any other Independent and disinterested witnesses so that it might be confidence inspiring and lent strong support and corroborate the medical evidence---Record transpired that there were substantial contradiction in the statements of witnesses and that had rendered the case of prosecution highly doubtful---Prosecution had tried to prove the confessional statement of accused through USB allegedly having recording of confession by accused---No effort, whatsoever, had been made to confront the accused with the recording in USB by playing the same in court, which amounted to acquiescence on the part of prosecution and was sufficient to discard the same---Circumstances established that no illegality and material irregularity or violation of settled norms required for appreciation of evidence had been pointed out in the impugned judgment so as to arrive at a different conclusion other than acquittal---Appeal was dismissed, in circumstances.

(b) Criminal trial---

----Call data record and USB---Evidentiary value---Call Data Record and USB consisting of alleged recording of confession of guilt by the accused being part of electronic data devices required stringent procedure to be proved as incriminating evidence to connect the accused with the commission of offence.

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

----Art. 38---Confession made to Police Officer---Scope---No confession made to a Police Officer would be proved against the person accused of any offence---Said statement was inadmissible in evidence.

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

----S. 164---Confessional statement---Scope---Before recording a conviction on a confessional statement by the court, its true and voluntary character must be satisfied besides some other independent piece of direct, substantial and circumstantial evidence which corroborates such recording.

(e) Criminal trial---

----Call Data Record, proof of---Call Data Record is electronically prepared record that can be proved through concerned expert official which is legally authorised to record such data; in absence thereof, it may be a relevant fact but not an evidence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of motorcycle owned by deceased----Reliance---Scope---Motorcycle owned by deceased was neither recovered from the accused on his pointation or from the place proved to be owned by the accused---Record showed that two days after the occurrence, official witness recovered the motorcycle from a place near a college when he was on routine gasht---No effort had been made to prove that accused had left the same at the relevant place---Recovery was of inconsequential, in circumstances.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Medical evidence---Scope---Medical evidence was not a substitute of direct evidence rather was only a source of corroboration in respect of nature of injury, kind of weapon used, the duration between injury and death and might confirm the ocular account but would not establish identity of accused or connect him with the commission of offence---Absence of medical evidence would not be fatal if the charge of murder was otherwise proved.

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

----S. 417--- Appeal against acquittal--- Interference--- Scope---Interference with the order of acquittal could not be ruled out if it was proved that material evidence was disregarded, evidence was misread and such evidence was received illegally.

Farman Ali Wazir for Appellant.

2019 P Cr. L J 1119

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Ayub Khan, JJ

SALAMATULLAH---Petitioner

Versus

STATE through Advocate-General Khyber Pakhtunkhwa and 3 others---Respondents

Writ Petition No. 3970-P of 2018, decided on 20th December, 2018.

Good Conduct Prisoners' Probational Release Act (X of 1926)---

----Ss. 2, proviso & 5---Good Conduct Prisoners' Probational Release Rules, 1927, R. 9---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Release on parole---Good conduct---Jurisdiction---Effect---Petitioner was convicted and sentenced to imprisonment for life and sought release on parole on grounds of blood donation and good conduct---Validity---Remission on account of good conduct was already granted to petitioner and powers with regard to conditional release of prisoner on account of good conduct solely vested with the Provincial Government---Petitioner had an appropriate and efficacious remedy to approach Provincial Government for redressal of his grievance, therefore, he could not invoke Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Constitutional jurisdiction could only be invoked by an aggrieved person who had no alternate and efficacious remedy for redressal of his grievance under law.

Ghulam Mohyuddin Malik for Petitioner.

Rab Nawaz Khan, A.A.G. for the State.

2019 P Cr. L J 1205

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

SAJJAD---Petitioner

Versus

The STATE and 4 others---Respondents

W.P. No. 1343-A of 2018, decided on 6th December, 2018.

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

----S. 154--- Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court---Scope---Quashing of FIR---Alternate remedy---Scope---Petitioner sought quashing of FIR which was registered against him, to counter the effect of the FIR which petitioner had got registered against complainant--- Validity--- Factual controversies could not be resolved in constitutional jurisdiction and deviation from normal procedure of law as provided under Ciminal Procedure Code, 1898 was not in consonance with the settled principles---Where alternate remedies provided under the law were available to the petitioner, constitutional jurisdiction could not be exercised---Constitutional petition being, bereft of merits, was dismissed in limine.

2006 SCMR 1192; 2008 SCMR 76 and PLD 2013 SC 401 ref.

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

----Ss. 154 & 156---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court--- Scope--- Quashing of criminal proceedings---Scope---High Court had limited scope and jurisdiction in the matter of quashing of FIR, while exercising its jurisdiction under Art. 199 of the Constitution---High Court refrained from interference with the police investigation of a criminal case---Criminal cases were decided on the basis of material collected by the prosecution during the course of investigation, and the evidence recorded in the Trial Court and that too after appraisal of evidence---High Court could not assume the role of an investigation agency or of a Trial Court to deliberate upon the factual controversies.

Muhammad Naseem Khan Swati for Petitioner.

Yasir Zahoor Abbasi, AAG for the State.

2019 P Cr. L J 1260

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

GOHAR AYUB---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No. 320-B of 2017, decided on 6th March, 2019.

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

----S. 5--- Anti-Corruption Establishment Ordinance (XX of 1961), S. 8---Penal Code (XLV of 1860), Ss. 468, 419, 420, 471, 409 & 406---Criminal Procedure Code (V of 1898), S. 22-A---Constitution of Pakistan, Art. 199---Quashing of FIR---Factual inquiry---Application to Ex-officio Justice of Peace---Maintainability---Provisions of Prevention of Corruption Act, 1947 not in derogation of any other law---Scope---Petitioner sought quashing of FIR registered against him on the order of Ex-officio Justice of Peace---Petitioner, being a government servant, purportedly used national identity card of the respondent and got him appointed to a post and received salary on his behalf without informing him---Petitioner contended that an inquiry before the Anti-Corruption Establishment was pending, therefore, application under S. 22-A, Cr.P.C. was not maintainable---Validity---FIR lodged by local police against the petitioner did not constitute the case of overlapping with the case of Anti-Corruption Establishment in view of S. 5(4) of Prevention of Corruption Act, 1947 and S. 8 of Anti-Corruption Establishment Ordinance, 1961---Application before Ex-officio Justice of Peace was not maintainable in circumstances---Inquiry of factual controversy by High Court would tantamount to exceeding jurisdiction conferred by Art. 199 of the Constitution---Constitutional petition was dismissed, accordingly.

PLD 2008 Pesh. 162; 2005 YLR 1329; PLD 1999 Lah. 109 and 2005 MLD 1647 ref.

Abdul Latif v. M. Paracha and others 1981 SCMR 1101 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR---Abuse of process of law---Order for quashing of FIR could be passed in a constitutional petition under Art. 199, as the ultimate object was to prevent abuse of process of law.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Factual inquiry--- Scope---Detailed examination of facts could not be made in a constitutional petition as it would have trappings of a final order.

Haji Hamayun Khan Wazir for Petitioner.

Inam Ullah Khan Mandra Khel for Respondents.

Shahid Hameed, Additional A.-G. for the State.

2019 P Cr. L J 1346

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

GHUFRAN SHAH---Petitioner

Versus

FARID KHAN ASI and 5 others---Respondents

W.P. No. 1016-M of 2018 with Interim Relief, decided on 11th March, 2019.

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

----Ss. 322 & 427---Mines Act (IV of 1923), S. 40---Criminal Procedure Code (V of 1860), Ss. 561-A & 403---Constitution of Pakistan, Art. 13(a)---Qatl-bis-sabab, mischief causing damage to the amount of fifty rupees, contravention of the provisions of Act---Inherent powers of High Court---Petition for quashing of FIR---Principle of double jeopardy---Applicability---Prosecution case was that during mining operation, an incident of sliding had taken place due to which two persons had lost their lives---Police, thus, registered the impugned FIR, wherein the present petitioner was charged under S. 322 read with 427, P.P.C.---Petitioner being aggrieved of the registration of the said FIR had approached the Court through Constitutional petition---Validity---Perusal of the said allegations would show that prima facie the petitioner was to be charged under two provisions of different statutes, one under S. 40 of the Mines Act, 1923 and the other under Ss. 322 & 427, P.P.C.---In essence the petitioner had taken shelter behind the Art. 13 of the Constitution as well as S. 403, Cr.P.C. for quashing of the impugned FIR by stating that when the incident was punishable under S. 40 of the Mines Act, 1923, then registration of FIR under Ss. 322 & 427, P.P.C. was unwarranted---Record showed that FIR under Ss. 322 & 427, P.P.C. had been registered which was at investigation stage and even no challan had been put in court---Record was also silent regarding initiation of any action under the Mines Act, 1923---Prosecution of the petitioner was yet to commence under the impugned sections of law---Contentions of the petitioner were unfounded, in circumstances---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 13(a)--- Principle of protection against double punishment/double jeopardy---Applicability---Once a person was prosecuted and acquitted for an offence, he could not be subsequently tried for the same.

Muhammd Ashraf's case 1995 SCMR 626; Nazir Ahmad v. Capital City Police Officer, Lahore and another 2011 SCMR 484; The State through Collector of Customs v. Nasim Amin Butt and others 2011 SCMR 1083 and Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFs Department, Islamabad 2014 SCMR 1376 rel.

Hafiz Ashfaq Ahmad for Petitioner.

Wilayat Ali Khan, AAG for Official Respondents.

Nemo for Private Respondents.

2019 P Cr. L J 1392

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Shakeel Ahmad, JJ

INAYATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 29-D of 2017, decided on 25th February, 2019.

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

----Ss. 302(b)& 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons fired at complainant and his son, with intention to kill them, resultantly, son of complainant got hit and fell down from the bridge into standing water and died while the complainant escaped un-hurt---Motive for the crime as alleged by the complainant in the FIR was a dispute over womenfolk---Allegedly, incident was witnessed by complainant/father of the deceased and a witness, who was their caste-fellow---Allegedly, witnesses had seen the accused causing the death of deceased---Eye-witness, who was related to the deceased from maternal side did not state about presence of complainant and alleged eye-witness on the scene of crime---Deposition of said witness totally falsified presence of complainant and eye-witness at the place of occurrence---Witnesses had deposed that after receiving firearm injuries the deceased fell down from the bridge in the standing water---Eye-witness had stated in cross-examination that height of the bridge might have been 4/5 feet higher than him; falling from such a height, no injury was found on the body of the deceased, though there was a little water beneath the bridge but neither clothes of the deceased nor injuries were found wet with water or mud by the police as well as by the doctor---Complainant had stated in his cross-examination that his clothes were stained with blood of his son when he picked and brought him to the hospital---Said witness could have established his presence on the spot by handing over such an important piece of evidence but he neither gave his clothes to the Investigating Officer nor blood was noted by him on the clothes---Said fact did not appeal to prudent mind that such an important piece of evidence could have been ignored by the Investigating Officer, which falsified the presence of said witnesses on the spot---Circumstances suggested that occurrence had not taken place in the manner or mode as described by the prosecution---Eye-witness was the resident of some other village, but he had not stated the reason for his presence at the place of incident therefore, he was a chance witness---Witnesses had alleged that the accused fired at the deceased from .12 bore shotgun, while co-accused from .30 bore pistol---However, appraisal of post-mortem report and the deposition of Medical Officer did not reflect that injuries were caused by .12 bore shotgun---No pellet was found in the body of the deceased---Only a distorted bullet was recovered from left thigh of deceased, which negated the presence of the witnesses on the sport---No implicit reliance could be placed upon the testimony of witnesses including the complainant---Prosecution had failed to prove its case against the accused beyond shadow of doubt, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions and improvements in the evidence of witnesses---Scope---Record showed that the evidence of ocular account contained certain additions and improvements as compared to the narration in the FIR---Admittedly, the complainant in his report recorded in the shape of murasila had not shown presence of the alleged eyewitness on the scene of crime, except himself and the deceased at the time of incident---Subsequent introduction of eyewitness in the prosecution's case and his examination as eye-witness was a deliberate act with mala fide intention---No credential value could be given to testimony of said witness, particularly, when it was alleged by complainant in his initial report recorded by the police that on his hue and cry people of the village attracted to the scene of crime who helped him in pulling out the body of his son from standing water---Said fact did not appeal to a prudent mind that the name of said witness escaped---Scanning of the statement of eyewitness reflected that on the relevant day and time, he was proceeding from his house and had seen the incident with his own eyes and he helped the complainant in pulling out the body of his son and subsequent proceedings including preparation of site-plan were carried out before him---Said witness was introduced as an eyewitness at a belated stage, after due deliberation and contemplation to support the contention of the complainant---If the alleged witness was there, it did not appeal to reasons that complainant would have missed his name as witness---Said improvements made by the complainant had created serious doubts about his veracity and credibility.

Amir Zaman v. Mehboob and others 1985 SCMR 685; Akhtar Ali's case 2008 SCMR 6; Khalid Javed's case 2003 SCMR 149; Muhammad Shafique Ahmad v. The State PLD 1981 SC 122; Syed Saeed Ahmad Shah and another v. The State 1993 SCMR 550; Muhammad Saleem v. Muhammad Azam 2011 SCMR 474 and Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344 rel.

(c) Criminal trial---

----Witness---Statement of witness not named in the crime report---Scope---No value could be given to the evidence of witness, whose name did not appear in the crime report.

(d) 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---Record showed that at the time of arrest, .12 bore shotgun along with licence was recovered from the possession of accused, while .30 bore pistol and its licence were recovered from the possession of co-accused---Both the said crime weapons along with empties were sent to Forensic Science Laboratory, wherein it was opined that empties of .12 bore were fired from .12 bore shotgun repeater---However, empties of .30 bore pistol did not match---No pellet injury on the body of the deceased was described in the post-mortem report, therefore, its matching report would not help the prosecution---Even otherwise, the recovery of crime empty or weapon with its matching report of Forensic Science Laboratory was a corroborative piece of evidence, which by itself was not sufficient to convict the accused in absence of substantive evidence.

Ijaz Ahmad's case 1992 SCMR 1279; Asadullah Muhammad Ali's case PLD 1971 SC 541 and Saifullah's case 1985 SCMR 410 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Scope---Prosecution had alleged that incident was result of a dispute over womenfolk---Solitary statement of the complainant without any supporting evidence was unsafe to be relied upon---Prosecution had failed to prove the motive, in circumstances.

(f) Criminal trial---

----Motive---Scope---Once a motive was alleged, then prosecution was bound to prove the same---Prosecution and not the defence, must suffer the consequences of failure to prove the motive.

Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali's case 1971 SCMR 432 and Ameenullah v. State PLD 1976 SC 629 rel.

(g) Criminal trial---

----Abscondence---Scope---Abscondence could not be a substitute for real evidence, because people do abscond though falsely charged in order to save themselves from agony of protracted trial or to be killed in retaliation.

Muhammad Khan and another v. The State PLD 1999 SC 1220 rel.

Abdul Latif Khan Baloch and Saifur Rehman Khan for Appellant.

Muhammad Ismail Khan Alizai for Respondent.

Illyas Ahmad Damani for the State.

2019 P Cr. L J 1432

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

MUJAHID IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 10-A of 2017, decided on 18th April, 2018.

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

----Ss. 4 & 14---Anti Terrorism Act (XXVII of 1997), Ss. 7 & 8---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(2)(3)(4)---Attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, haraabah, act of terrorism---Police custody of accused was declined on the ground that since the accused was juvenile at the time of commission of offence, therefore, Anti-Terrorism Court lacked jurisdiction to hold his trial---Police was directed that the case be forwarded to Juvenile Court---Scope---Under S. 4(3) of the Juvenile Justice System Ordinance, 2000, the Juvenile Court established under the Ordinance had exclusive jurisdiction to try cases in which a juvenile was accused of commission of offence---Anti-Terrorism Act, 1997 was promulgated on 20th August 1997, much prior to the promulgation of the Ordinance---According to S. 21-G of the Anti-Terrorism Act 1997, initially all offences under the Anti-Terrorism Act, 1997 were to be tried by the Anti-Terrorism Courts established under the Act---Word "exclusively" inserted in S. 21-G of the Anti-Terrorism Act, 1997 being later in time, would have precedence over S. 4(3) of the Juvenile Justice System Ordinance, 2000, when the intention of legislature was reflected in S. 14 of the Ordinance which envisaged that the provisions of the Ordinance would be in addition to and not in derogation of any law for the time being in force---Even otherwise, the Federal Government of Pakistan through Notification dated 30.05.2012 had declared all the Anti-Terrorism Courts established throughout the country under the Anti-Terrorism Act, 1997, competent to exercise the powers of Juvenile Courts in the area of their respective jurisdiction, under the Juvenile Justice System Ordinance, 2000---Not only the powers and functions of Juvenile Court had been conferred on the Anti-Terrorism Court, but under S. 21-G of the Act, Anti-Terrorism Court had exclusive jurisdiction to try all such offences---Revision petition was accepted by setting aside the impugned order.

Asad Ullah alias Shakir Ullah v. The State 2011 PCr.LJ 1022 and Muhammad Rasool v. The State PLD 2012 Bal. 122 rel.

Qazi Shams-ud-Din for Petitioner.

Yasir Zahoor Abbasi, Assistant A.-G. for the State.

M. Bilal Khan for Respondent No.2.

2019 P Cr. L J 1558

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Shakeel Ahmad, JJ

FAQIR KHAN---Petitioner

Versus

BAKHTAWAR JAN and 4 others---Respondents

W.P. No. 603-M of 2016, decided on 9th May, 2018.

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

----Ss. 22-A, 179 & 177---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Ex-Officio Justice of Peace---Territorial jurisdiction---Scope---Ordinary place of inquiry and trial---Accused triable in the District where act is done or where consequences ensue---Scope---Petitioner assailed order of Ex-officio Justice of Peace whereby he ordered for registration of FIR under S. 489-F, P.P.C.---Petitioner contended that cheque in question was dishonoured in District 'S', so the Ex-officio Justice of Peace at place 'T' had no jurisdiction to entertain application under S. 22A, Cr.P.C.; that civil liability was being converted into criminal liability; that suit for rendition of accounts was sub judice before the court of competent jurisdiction and that date of issuance of cheque was tampered by the complainant---Plea of complainant was that he had deposited the cheque in his Bank account at place 'T' and that the offence under S. 489-F, P.P.C. was completed at district 'S' where cheque in question was dishonoured, consequences of offence in terms of S. 179, Cr.P.C. were ensued at place 'T', therefore, complainant had the option to initiate proceedings at any of the two places---Validity---When a person committed any offence or did some act and due to that act any consequence ensued, such offence could be inquired into or tried by the court where act was done or consequence ensued---When the cheque was dishonoured, the offence was complete, but the complainant came to know about commission of offence at place 'T'---Consequences of the offence in terms of S. 179, Cr.P.C. were ensued at place 'T', therefore, complainant rightly submitted complaint under S. 22A, Cr.P.C. before Ex-officio Justice of Peace at place 'T'---No legal impediment or prohibition was in the way of complainant---Complainant had option or choice that he could initiate criminal proceedings under S. 489-F, Cr.P.C. at any of the two places---Disputed question of facts involved in the matter could not be resolved in constitutional jurisdiction---Constitutional petition, being bereft of merit, was dismissed.

Basharat Iqbal v. The State 1993 PCr.LJ 2151; Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 ref.

(b) Words and phrases---

----'Ensue'---Definition.

Black's Law Dictionary ref.

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

----S. 22-A---Application to Ex-Officio Justice of Peace for registration of FIR pending Civil Suit---Maintainability---Civil and criminal proceedings can proceed side by side---No bar on the initiation of criminal proceedings in the presence of civil suit.

Muhammad Shafi v. DSP and others PLD 1992 Lah. 178 and Malik Naeem Awan v. Malik Aleem Majad and 5 others PLD 2005 Lah. 358 ref.

(d) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Disputed question of fact---Scope---Disputed questions of fact could not be gone into proceedings under Art. 199 of the Constitution.

Seema Fareed and others v. The State 2008 SCMR 839 ref.

Shamsher Ali Khan Mirkhankhel and Rashid Ali Khan for Petitioner.

Asghar Ali for Respondents.

Rafique Ahmad, Assistant A.-G. for official Respondents.

2019 P Cr. L J 1627

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

GULZADA---Appellant

Versus

GUL and another---Respondents

Criminal A. No. 80-M of 2017, decided on 19th March, 2019.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in lodging of FIR---Improvement in testimony---Withholding material witness---Presumption---Unnatural conduct of eye-witness---Scope---Prosecution case was that deceased was going towards the house of accused for complaining against a fight; accused met him and started firing through his pistol, which hit the deceased at his back and he died on the spot---Occurrence was said to be witnessed by two eye-witnesses---Occurrence took place on 13:15 hours, whereas the deceased was medically examined at 2:15 p.m. and the report was made by complainant at 2:30 p.m.---Complainant party had ample opportunity to make consultation before nomination of the accused---Complainant had not stated in the complaint that he was an eye-witness to the occurrence, however, he appeared before the Trial Court with an improved version of the case and stated that he accompanied the deceased to the house of accused---Improvement in complainant's statement prima facie appeared to be dishonest, therefore, his testimony was excluded---One of the eye-witnesses, who according to the prosecution case had seen the occurrence, was unnecessarily abandoned by the prosecution, despite being closely related to the complainant---Adverse inference under Art. 129(g), Qanun-e-Shahadat, 1984 was drawn by holding that the purpose behind withholding the witness was based on sinister designs, and that had the said eye-witness been produced in the court he would not have supported the prosecution case---Non-examination of the important witness materially affected the prosecution case---Second eye-witness justified his presence at the spot because the occurrence took place at 1:15 p.m. near the mosque and in normal routine people go to the mosque for offering their prayers---Statement of said eye-witness contradicted with the initial version of the complainant as he had stated before the court that complainant was present on the spot---Eye-witness did not appear to be a truthful witness---Immediate conduct of the witness after murder was unnatural as he had not accompanied the deceased to the hospital---Prosecution failed to prove its case against the accused/appellant beyond shadow of doubt---High Court accepted the appeal by setting aside conviction and sentence recorded by Trial Court.

Muhammad Rafiq v. The State 2010 SCMR 385; Muhammad Mansha v. The State 2018 SCMR 772 and Lal Khan v. the State 2006 SCMR 1846 rel.

(b) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Possessing unlicensed arms, etc.---Recovery of weapon of offence---Delayed recovery---Non-association of private witnesses---Effect---Occurrence took place on 5.3.2009 at 13:15 hours, whereas the crime weapon was recovered from the bushes on 12.5.2015---Prosecution claimed that crime weapon was hidden in the bushes after commission of the offence by the accused, however, it did not appeal to prudent mind that the said pistol was lying there for more than 6 years and even then it was in working condition---Police officer who recovered the crime weapon admitted during cross-examination that from the condition of pistol it could be assumed that it was lying in the bushes for 3/4 days---Recovery was never supported by any private witness---Prosecution failed to prove its case against the accused beyond shadow of doubt---High Court accepted the appeal by setting aside conviction and sentence recorded by Trial Court.

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

----S. 154---Delay in lodging of First Information Report (FIR)---Effect---Unexplained delay in lodging FIR creates serious doubt on the authenticity of prosecution version.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(d) Criminal trial---

----Witness---Statement of related witness---Reliance---Mere relation of the complainant-party with a witness is no ground to disbelieve his testimony provided that he is a truthful witness.

(e) Criminal trial---

----Recovery of weapon---Corroborative evidence---When the ocular testimony fails to establish the case of prosecution against the accused then recovery of crime weapon, being corroborative piece of evidence, also losses its evidentiary value.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and The Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

Muhammad Usman Khan Turlandi for Appellant.

Rahim Shah, Assistant Advocate-General for the State.

Complainant in person.

2019 P Cr. L J 1665

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

MUHAMMAD BILAL---Appellant

Versus

AHMAD SULTAN and others---Respondents

Criminal Appeal No. 129-D of 2017, decided on 27th June, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---"Illegal Dispossession"---Encroachment over property---Scope---Petitioner claimed that respondents had encroached upon his property by constructing a wall over his property---Trial Court dismissed the complaint---Validity---Allegation against respondents was of encroachment rather than of criminal trespass or unlawful entry with the intention of grabbing the land or of dispossession---Mere encroachment was something different from "illegal dispossession" as the former did not involve intentional grabbing of the property, therefore, the element of mens rea was missing---Necessary ingredient of offence under S. 3 of Illegal Dispossession Act, 2005 was not disclosed in the complaint---Trial Court had rightly dismissed the complaint---Appeal was dismissed.

Waqar Ali and others v. The State through Prosecutor/AG PLD 2011 SC 181 rel.

Muhammad Mohsin Ali for Appellant.

Haji Muhammad Shakeel for Respondents.

Ilyas Ahmad Damani for the State.

2019 P Cr. L J 1710

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

SAID KARAM alias AJARR and others---Appellants

Versus

The STATE and others---Respondents

Criminal A. No. 183-M and Criminal R. No. 39-M of 2015, decided on 3rd October, 2018.

(a) Criminal trial---

----Dying declaration---Evidentiary value---Dying declaration by itself is a weaker type of evidence which needs corroboration through confidence inspiring evidence---Solely relying on dying declaration without other corroborative evidence being in line and in support of said dying declaration would be against basic principles of jurisprudence of criminal administration of justice.

Tahir Khan v. The State 2011 SCMR 646 and Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Interested and chance witnesses---Dying declaration, veracity of---Accused was convicted of committing Qatl-i-amd and sentenced to imprisonment for life while co-accused was acquitted of charge on benefit of doubt by Trial Court---Accused assailed conviction and sentence on grounds that dying declaration of complainant was not corroborated by other evidence---Validity---Both eye-witnesses were not only closely related to complainant but highly interested, besides being chance witnesses---Testimony of chance as well as interested witnesses could be taken into account provided same were confidence inspiring, steadfast and free from any kind of contradiction---Both eye-witnesses had made considerable improvements in their testimony whereby a different story was narrated---Material contradictions and improvements coupled with unnatural conduct of alleged eye-witnesses was sufficient to take their testimony out of consideration---Both eye-witnesses were working for gain at town other than occurrence had taken place therefore, they happened to be chance witnesses---Prosecution witnesses were bound to have established reasons for their presence with supportive evidence---High Court set aside conviction and sentence of accused as case of prosecution was not proved beyond reasonable doubt and order of Trial Court was based on wrong appreciation of evidence---Appeal was allowed in circumstances.

Mst. Zahida Bibi v. The State PLD 2006 SC 255; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

(c) Criminal trial---

----Abscondance---Effect---Conviction---Principle---Abscondance could not be made sole basis of conviction of accused when other prosecution evidence is doubtful and riddled with contradiction.

Muhammad Sadiq v. The State 2017 SCMR 144 and Rohtas Khan v. The State 2010 SCMR 566 rel.

Badi-uz-Zaman Khan for Appellant (in Criminal A. No. 183-M of 2015).

Rafiq Ahmad, Assistant Advocate-General for the State (in Criminal A. No. 183-M and Criminal R. No. 39-M of 2015).

Aftab Khan for Respondent No.2 (in Criminal A. No. 183-M of 2015).

Aftab Khan for Petitioners (in Criminal R. No. 39-M of 2015).

Badi-uz-Zaman Khan for Respondents (in Criminal R. No. 39-M of 2015).

Date of hearing: 3rd October, 2018.

CONSOLIDATED JUDGMENT

SYED ARSHAD ALI, J.---Through this single judgment, we intend to decide this criminal appeal bearing No. 183-M12015 as well as connected Cr. R. bearing No. 39-M/2015 as both these matters emanate from one and the same judgment dated 07.07.2015 rendered by the learned Sessions Judge/ Zilla Qazi, Buner at Dagger, in case FIR No.392 dated 21.06.2013 under sections 302, 34 of the Pakistan Penal Code, 1860 ("P.P.C.") read with section 13 of Pakistan Arms Ordinance, 1965 ("A.O") registered at Police Station Nawagai, District Buner, whereby the appellant namely Said Karam alias Ajarr was convicted under section 302(b), P.P.C. and sentenced to life imprisonment (on two counts) as Ta'zir along with payment of compensation of Rs.1,000,000/- (rupees one million) payable to the legal heirs of both the deceased as per their respective Shari share under section 544-A, Code of Criminal Procedure, 1898 ("Cr.P.C.") or in default thereof he was ordered to undergo further six (6) months of simple imprisonment after completion of substantive sentence. The accused/appellant was further convicted under section 13, A.O. and sentenced to three (3) years' imprisonment with a fine of Rs. 3,000/- (rupees three thousand) or in default thereof shall further undergo one (1) month simple imprisonment. However, the accused/appellant was extended the benefit of section 382-B, Cr.P.C.

1. The prosecution case is that on 21.06.2013 at 20:15 hours the then injured/complainant, now deceased Fayaz Muhammad, who at the relevant time was in his senses reported the matter to the local police in the emergency ward of Dagger hospital that on the day of occurrence a quarrel had taken place between his uncle namely Amir Mahmood and Said Karam alias Ajarr (accused/appellant), however, both of them were later calmed by the people of the locality. The complainant was on his way towards the house of his uncle namely Amir Mahmood to inquire about the dispute, when he reached near the house of one Israr, where he saw that his grandfather namely Abdul Jalil (deceased) and Said Karam alias Ajarr were in a heated argument with each other. In the meanwhile, Said Karam alias Ajarr took out his pistol and fired at complainants' grandfather Abdul Jalil in order to commit his Qatl-i-amd, as a result of which he was hit and died at the spot. At that moment, Ibrahim son of Said Karam alias Ajarr (absconding accused) duly armed with pistol came there and started firing upon the complainant. Due to shots fired by the accused, the complainant was hit on different parts of his body which resulted in him sustaining seriously injuries. In the same breath the complainant also mentioned the motive behind the occurrence as prior to the occurrence accused Said Karam had hit the dog of his uncle Amir Mahmood by throwing a stone at it, which led to the quarrel between them. In addition to the complainant the occurrence is stated to have been witnessed by Nazeer Gul son of Bacha Gul (PW-4) and Israr son of Amir Mahmood (PW-3).

2. After reducing the aforesaid statement of the complainant in form of a written report, Wakil Zada, ASI, PS Nawagai (PW-5), read over the said report to the complainant and explained the same to him. The complainant after admitting the report to be correct thumb impressed the same in token of its correctness. The dead body of the deceased namely Abdul Jalil was shifted to Nawagai hospital for medical examination. The said PW has also prepared an injury sheet of the injuries caused to the body of the injured Fayaz Muhammad (complainant) and handed over the same to doctor Naeem PW for further proceedings. The Murasila Ex. PA/1 was sent to Police Station ("PS") Nawagai through constable Habibullah, No. 1046, which culminated into FIR ibid Ex. PW­11/5. Later, the complainant succumbed to the injuries and died on 26.6.2013.

3. Investigation of the case was entrusted to PW-14. The investigation officer at PS Nawagai submitted challan before the court after completion of the investigation. Since the accused were avoiding their lawful arrest, therefore, proceedings under section 512, Cr.P.C. were initially initiated against them. Thereafter, upon arrest of the accused/appellant supplementary challan was submitted against him in the Court of learned Sessions Judge/Zilla Qazi, Buner at Dagger. At the commencement of the trial the prosecution examined as many as 16 witnesses whose statements were recorded and placed on file. On closure of the prosecution evidence, accused was examined under section 342, Cr.P.C., wherein he denied the charges, posed innocence and stated to have been falsely implicated in the case.

4. On conclusion of the trial, the learned Sessions Judge/Zilla Qazi, Buner at Dagger, convicted and sentenced the accused/appellant, vide the judgment impugned herein, hence these connected matters.

5. We have heard arguments of the learned counsel for the accused/appellant, learned counsel for the complainant and learned Assistant Advocate General appearing on behalf of the State and gone through the record of the case with their able assistance.

6. The entire case of the prosecution hinges upon the dying declaration of the injured/complainant Fayaz Muhammad which was recorded in shape of 'Murasila' followed by a FIR, statement of Wakil Zada, ASI, (PW­5) who has recorded the statement/dying declaration of the complainant and the testimony of Israr Mohammad (PW-3) and Nazir Gul (PW-4), who according to the statement/dying declaration of the complainant have witnessed the occurrence.

7. The foremost question for determination before us is the veracity of dying deceleration of the complainant qua its corroboration by the ocular evidence. According to the prosecution version as narrated in Murasila Ex PA/1, which was later on termed as the dying declaration of the complainant, the time of occurrence was 18:15 hours whereas report of the complainant was recorded on 20:15 hours by PW-5 i.e. Wakil Zada, ASI, at Dagger hospital. The entire record is silent about the distance from the place of occurrence and Dagger hospital nor it could be established from the record that who had accompanied the complainant at the relevant time from the place of occurrence to the hospital. Even otherwise, the prosecution has recorded statements of 16 PWs but they did not utter a single word regarding transferring of the complainant in such a critical injured condition from the place of occurrence to Dagger hospital.

The close perusal of the contents of the Murasila, later termed as dying declaration, would show that the complainant had minutely and specifically narrated the entire incident and has stated that he had sustained serious injuries on different parts of his body because of the shots fired by absconding accused Ibrahim whereas it was because of the firing by present accused/appellant Said Karam alias Ajarr that his grandfather Abdul Jalil (deceased) was injured and died at the spot. He has also stated that the said incident was also witnessed by two (2) eye-witnesses of the occurrence namely Nazir Gul and Israr Mohammad. We have to see as to whether despite sustaining such severe and serious injuries, the complainant was still able to narrate the incident with such a particularity and precision. In this regard, the injury sheet of the complainant Ex. PW-6/1 and the postmortem report of the deceased Ex.PW-10/1 are of paramount importance which show the following injuries on the body of the then injured now deceased.

Injury sheet:-

i) Entry wound below xipisternum-epigastrium, exit wound back of chest left side.

ii) Entry wound right groin. No exit wound.

iii) Entry wound left iliac fossa. No exit wound.

iv) Referred to LRH. Detailed postmortem report is attached. He expired in LRH on 25.6.2013.

Postmortem examination:-

a) A healing stitched firearm wound on the back of left chest, 6 cm from midline and 9 cm above costal margin.

b) One surgically produce wound (drain) on left outer chest, 6 cm lateral nipple and 9 cm below axilla.

c) A healing stitched firearm wound on front of left side of chest, 3 cm from midline and 3 cm above costal margin.

d) A healing stitched firearm wound on front of left side of abdomen, 11 cm from midline and 2 cm below costal margin.

e) One surgically produced wound (drain) on front of left lower abdomen, 12 cm from midline.

f) One stitched laparotomy wound on midline on front of abdomen.

Remarks:

In opinion of the doctor, the deceased died due to injuries to left lung, liver spleen, diaphragm, stomach and small intestines due to fire arm.

Dr. Naeem-ul-Haq, (PW-6) who furnished the medical evidence stated in his cross-examination that at the time of examination of the complainant blood was still oozing from the injuries present on his body. However, in the injury sheet Ex. PW­6/1, he has not expressed his opinion as to whether at the relevant time the complainant was conscious and well oriented to narrate the incident. It is also evident from the statement of PW-5 who had reduced into writing the 'Murasila'/ statement of the complainant in shape of dying declaration that indeed he was the first person who had seen the complainant and recorded his statement and the injured/complainant was examined by the doctor after recording of his statement, therefore, it was incumbent upon the said doctor (PW-6) to have stated in the injury sheet of the injured/ complainant (Ex. PW-6/l) about his physical condition as to whether he was conscious at the relevant time and was able to speak. Moreover, no time and date of the examination of the complainant were mentioned in the injury sheet (Ex. PW-6/1) by the doctor nor was it mentioned as to who had brought the injured to the hospital for medical examination. Although, on the record, the police had solicited on the same day the opinion of the doctor through an application (Ex. PW-5/1) and on the same application/request, the doctor had opined that "he was conscious, well oriented and was able to record his statement". For this certificate, the said Dr. Naeem-ul-Haq (PW-6) was again re-examined, however, from the bare reading of the said certificate it shows that it was provided subsequent to the examination of the complainant. Moreover, in view of the certificate being furnished by the Dr. Naeem-ul-Haq, PW-6 with regard to physical condition of the then injured/complainant now deceased Fayaz Muhammad to narrate the incident with such a particularity despite presence of severe firearm injuries on his body and that too on his vital parts. In similar situation as emerged in the present case, it has been held by the august Supreme Court of Pakistan in case of "Mst. Zahida Bibi v. the State" reported as PLD 2006 Supreme Court 255:-

"The medical evidence revealed that 70% body of the deceased was burnt and this is a matter of common sense that in such a precarious condition, it was not possible for the deceased to narrate the occurrence in such detail."

1. Another intriguing aspect of the case is that the doctor who is an independent witness does not support the statement of the complainant. The natural course of happening would be that in the hospital the said dying declaration must have been recorded in the presence of the doctor or other medical staff, who had provided the first aid to the complainant because it is not the prosecution case that when the complainant was brought to the hospital the medical team was not available to provide first aid to the complainant. Even otherwise it is hard to believe that in presence of such serious injuries on the body of the complainant he was able to narrate the prosecution case with such particularity of events that he even mentioned the names of the witnesses who despite his close relative did not bother to accompany the complainant and the deceased to take them to hospital.

It is established principle of law that dying declaration by itself is a weaker type of evidence which needs corroboration through confidence inspiring evidence. In this regard, wisdom is derived from the case of "Tahir Khan v. The State" (2011 SCMR 646) in the following manner:-

"Mere dying declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person. Dying declaration is weaker type of evidence, which needs corroboration when fully corroborated by other reliable evidence. Facts and circumstances of each case have to be kept in view and also credibility, reliability and acceptability of such declaration by Court."

The aforesaid law laid down by the august Supreme Court also reflects in the case of "Muhammad Ameer and another v. Riyat Khan and others" (2016 SCMR 1233). Indeed relying solely on the dying declaration without other corroborative evidence being in line and in support of the said dying declaration would be against the basic principles of the jurisprudence of criminal administration of justice.

1. Now moving on to the statements of the eye witnesses of the occurrence in support of the afore-said dying declaration of the complainant. Both the eye-witnesses are not only closely related to the complainant but highly interested, besides being the chance witnesses. The fact that the testimony of chance as well as interested witnesses can be taken into account provided the same are confidence inspiring, steadfast and free from any kind of contradiction. Israr Mohammad (PW-3) is the son of Amir Muhammad and it is stated in the Murasila that earlier the said Amir Muhammad had altercated with the accused/appellant Said Karam alias Ajarr and later the accused/appellant had also exchanged heated words with the deceased Abdul Jalil. His close relations with the deceased is admitted by him in his cross-examination. However, the conduct exhibited by him soon after the occurrence is very unusual which creates serious doubts regarding his presence on the scene of occurrence. Despite the fact that it is stated that he had witnessed the occurrence he neither accompanied the deceased (Abdul Jalil) nor the complainant to the hospital. He has affirmed in his cross examination that "I did not accompany the deceased and the injured to the hospital. Nazir Muhammad also did not accompany with them to the hospital. Both of us remained on spot and then went to our houses." Even, this PW further admitted in his cross-examination that he did not participate in the funeral of the deceased and he spent the entire day in his house. It is also in the evidence of the said PW that he was working as labourer at Rawalpindi. He has also made dishonest improvement in his statement regarding material facts.

Moving forward to the testimony of the other eye-witness Nazir Gul (PW-4), the said witness is the son-in-law of the deceased Abdul Jalil and despite the fact that he had allegedly seen the occurrence but neither he accompanied the deceased to the hospital nor the complainant and they (deceased and complainant) both were left at the mercy of others to take them to the hospital.

1. Another damaging factor for the prosecution case is change of stance from their statement recorded under section 164, Cr.P.C. followed by their initial court statement recoded under section 512, Cr.P.C. where both, the eyewitnesses have stated that on the day of occurrence the police had come to the spot and had taken the dead bodies of the deceased along with blood stained earth coupled with the fact that in their presence the police had also taken pictures of the crime venue. However, during court statements, both the eye-witnesses have made considerable improvements in their testimony whereby a different story was narrated. These material contradictions and improvements coupled with unnatural conduct of the alleged eye-witnesses are sufficient to take their testimony out of consideration. Indeed it is evident from their statement that both the PWs are working for gain at the town other than where the occurrence has taken place therefore they happen to be the chance witnesses. Hence it was incumbent upon them to have established the reasons for their presence with supportive evidence. In this regard reliance is placed on the case of "Mst. Rukhsana Begum and others v. Saijad and others" (2017 SCMR 596) wherein it has been held:-

"Chance witness was one who, in the normal course was not supposed to be present on the crime spot unless he offered cogent, convincing and believable explanation, justifying his presence there."

And regarding their testimony which is based on improvements, the august Supreme Court in similar circumstances has discarded the statement of such witnesses. The hounorable Supreme Court of Pakistan in case "Muhammad Mansha v. The State" (2018 SCMR 772) has held that it is unsafe to rely on the statement of such witnesses who had made dishonest improvements in their statements.

1. The upshot of the aforesaid discourse is that the entire prosecution evidence in respect of guilt of the accused/appellant is shrouded in mystery and the true facts have been concealed and it also discerns from record that the complainant was accompanied by number of his co-villagers/relatives at the time of recording of his statement at Dagger hospital but for reasons best known to prosecution their statements were not recorded, therefore, the possibility cannot be ruled out that the name of accused/appellant might have been provided to Wakil Zada, ASI, (PW-5) by the said relatives of the deceased.

2. It is also on the record that the civil hospital at Nawagai is at a distance of two (2) kilometers from the place of occurrence and the deceased was initially taken to that hospital, therefore, the possibility that the complainant was also firstly taken to the said civil hospital and then to Dagger hospital cannot be ruled out because the record is completely silent as to who had taken the deceased and complainant to the hospital. In the meantime, there was enough opportunity for the relatives of the deceased/complainant to deliberate and consult with each other in order to incriminate the present accused/appellant.

3. We are also conscious of the fact that the accused/appellant remained absconder for more than 7 months. However, by know it is settled law that such abscondence could not be made sole basis of conviction of accused when the other prosecution evidence is doubtful and riddled with contradiction. Guidance in this regard is taken from the judgment of the apex court passed in Muhammad Sadiq v. The State (2017 SCMR 144). In support of the same ratio, reliance is further placed on the case of "Rohtas Khan v. The State" reported as 2010 SCMR 566, wherein it has been held:-

2019 P Cr. L J 1756

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Shakeel Ahmad, JJ

JAVED KHAN and 5 others---Petitioners

Versus

The STATE and others---Respondents

Writ Petition No. 131-B of 2019, decided on 4th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 168, 173, 190 & 561-A---Petition for quashing of order---Investigation report---Class of case---Determination---Taking of cognizance of case---Magistrate, duty of---Recommendation/request of the Investigating Officer to discharge the accused in case FIR registered under Ss. 354/452/337-F(V)/148/149, P.P.C. was turned down and he was directed to further reinvestigate the case---Validity---Report submitted by the Police Officer under S. 173, Cr.P.C., was not binding on the court---Court therefore, notwithstanding the recommendation of the Investigating Officer regarding cancellation of the case and discharge of the accused from the case, could decline to cancel the case and proceed to take cognizance of the matter as provided under S. 190, Cr.P.C.---Magistrate is competent to pass any order on the report submitted by the investigating officer and take cognizance of the offence or even order for further investigation---In the present case, the Magistrate had applied her mind to the facts and circumstances of the case and had passed order giving reasons of disagreement with the report of the investigating officer---No illegality or irregularity was found in the impugned order---Petition being devoid of force was dismissed in limine.

Federation of Pakistan v. Malik Mumtaz Hussain 1997 SCMR 299; Muhammad Ahmad v. The State 2010 SCMR 660 and Imran v. Liaqat Ali 2010 YLR 3288 rel.

Haji Hamayun Khan Wazir for Petitioners.

2019 P Cr. L J 1789

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

Mst. AMINA BIBI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 66-M, 67-M and Criminal R. No.21-M of 2017, decided on 18th February, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Unseen occurrence---Retracted confession---Benefit of doubt---Prosecution case was that deceased was killed in an unseen occurrence---Widow of deceased (accused) was charged for murder on the statements of father (complainant) and brother of the deceased---Accused lady was arrested on the next day from the house of complainant and was produced before Judicial Magistrate, where she confessed her guilt and attributed effective role of murder to her paramour (co-accused)---Held; accused after commission of the crime was in the house of her in-laws, wherefrom she was arrested---Accused was charged for murder on 27/8/2015, however, she was not arrested on the same day but was arrested on the following day and was produced before Judicial Magistrate for recording of her confession---Judicial Magistrate should have provided the accused with an atmosphere where she should have felt no signs of fear---Contents of confession did not appear to be true because she had confessed about her illicit relations with the co-accused and said illicit relation, according to her confession, was suspected by her cousins and the deceased---Complainant did not mention about such illicit relation before the court and admitted that he did not know about any illicit relation between the accused persons---Investigating officer admitted that call data record of the day of occurrence showed that no conversation took place between the accused persons---Accused did not confess that she was present at the time of murder but site-plan prepared on the pointation of co-accused showed that accused was present at the place of occurrence---Contents of confession recorded by accused did not corroborate by other evidence, therefore, the same did not appear to be true---No corroborative piece of evidence was available on the file, which connected the co-accused with the commission of offence---Appeals against conviction were accepted, in circumstances.

Mushtaq and others v. The State 2012 SCMR 109 and Abdur Rehman's case 208 YLR 1629 rel.

(b) Criminal trial---

----Confession--- Conviction on--- Retracted confession--- Scope---Retracted confession, if confidence inspiring can be made a ground for conviction of the accused, however, when the same appears to be untrue and involuntary then it would not be safe to solely rely on the confession for conviction of the accused without further corroboration through confidence inspiring circumstantial evidence.

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

----Art. 43--- Confession of a accused against co-accused---Corroborative evidence---Confession of accused facing joint trial was only a corroborative piece of evidence against the co-accused, which required strong corroboration.

Javaid Akhtar Tajak for Appellants.

Haq Nawaz, Assistant Advocate-General for Respondents.

Date of hearing: 18th February, 2019.

CONSOLIDATED JUDGMENT

SYED ARSHAD ALI, J.---Through this single judgment, we propose to decide this criminal appeal bearing No. 66-M/2017 as well as the connected Criminal Appeal No. 67-M of 2017 and Criminal Revision bearing No. 31-M/2017, as all these matters emanate from one and the same judgment dated 02.03.2017 handed down by the learned Additional Sessions Judge/Izafi Zilla Qazi Chakdara, Camp Court at Timergara, in case FIR No. 278 dated 25.08.2015 registered under sections 302, 34, P.P.C. at Police Station Talash District Dir Lower, whereby the appellants Mst. Amina Bibi and Ghulam Sardar were convicted and sentenced under different sections of law in the following manner:-

· The appellant Mst. Amina Bibi was convicted under section 302(b), 34, P.P.C. and sentenced to life imprisonment along with payment of compensation of Rs. 500,000/- under section 544-A, Cr.P.C., or in default thereof she was ordered to undergo further 6 months' SI. However, the accused/appellant was extended the benefit of section 382-B, Cr.P.C.

· The appellant Ghulam Sardar was convicted under sections 302(b), 34, P.P.C. and sentenced to life imprisonment along with payment of compensation of Rs. 500,000/- under section 544-A, Cr.P.C, or in default thereof he was ordered to undergo further 6 months' S.I. However, the accused/appellant was extended the benefit of section 382-B, Cr.P.C.

1. As per prosecution story, on 25.08.2015 at 16:25 hours, the complainant Muhammad Hazrat, PW-1 reported the incident to Gul Zaman, ASI, PW-3 at the place of occurrence known as Hookhano Sar Macho Talash about the unnatural death of his son Rahim Zada, who was killed by unknown accused. Therefore, on the basis of the said report of the complainant, the 'Murasila' Ex.PW-1/1 was drafted, which culminated into FIR ibid being registered against unknown accused at PS concerned on 25.8.2018.

2. Upon completion of the investigation, complete challan was forwarded to the SHO concerned for onward submission.

3. During the course of trial, the prosecution examined as many as 10 witnesses whose statements were recorded and placed on file. On closure of the prosecution evidence, accused were examined under section 342, Cr.P.C., wherein they denied the charges, claimed innocence and stated to have falsely been implicated in the case.

4. On conclusion of the trial, the learned Additional Sessions Judge/Izafi Zila Qazi Dir Lower convicted and sentenced the accused/appellants vide the judgment impugned herein. Hence, these connected matters.

5. Arguments of learned counsel for the accused/appellants and learned Assistant Advocate General appearing on behalf of the State were heard and record of the case was perused. While the complainant on 21.05.2018 appeared before this Court and stated that he did not want to engage counsel and would rely on the arguments of the learned State counsel.

6. The precise facts of the prosecution case are that on 25.8.2015 pursuant to an information received by Gul Zaman, ASI, PW-3 regarding the death of the deceased Rahim Zada, the said ASI Gul Zaman rushed to the spot where he found the dead body of Rahim Zada son of Muhammad Hazrat smeared in blood. There, father and brother of the deceased along with elders of the locality were present. The father of the deceased reported the matter to the said ASI Gul Zaman, PW-3 to the effect that his deceased son had gone to the mountain commonly known as Hookhano Sar for collection of dry wood and grass, however, he could not turn up, therefore, All Muhammad, the relative was asked so to search him who found the dead body of the deceased in the aforesaid mountain smeared in blood. The said report was recorded in shape of 'Murasila' Ex. PW-1/1 and later was incorporated in FIR No. 278 dated 25.08.2015 being registered against unknown accused at PS concerned.

7. On 27.8.2015 Said Malook the brother and Muhammad Hazrat the father of the deceased had recorded their statements under section 164, Cr.P.C. wherein they had charged the present appellant Mst. Amina Bibi, the widow of the deceased for facilitation of murder of her husband.

8. On 28.8.2015 Mst. Amina Bibi was arrested from the house of the complainant, she was produced before the Judicial Magistrate Chakdara, PW-10, where she had confessed her guilt. Thereby, attributing effective role of murder of the deceased to the co-appellant Ghulam Sardar. In the said confession, she had also admitted her illicit relations with the co-accused Ghulam Sardar.

9. On 30.08.2015 the Investigation Officer had recovered an axe and a small hoe from the house of the deceased vide recovery memo Ex. PW-8/8. Similarly, on 28.08.2015 the co-convict Ghulam Sardar was also arrested, who according to the investigation had made pointation of the place of occurrence where he had killed the deceased and in the said pointation he had also shown Mst. Amina Bibi to be present with him in the said Jungle.

10. Admittedly, it is an unseen occurrence, hence the entire prosecution case rests on the retracted confession of the appellant Mst. Amina Bibi and the alleged pointation made by the co-appellant Ghulam Sardar, which was duly exhibited in the site plan PW-8/1.

11. Since the main evidence against the present appellants is the confession of accused Mst. Amina Bibi, therefore, it would be appropriate to reproduce the same, which reads as under:-

1. No doubt, the said confession was recorded on the first day of arrest of the appellant Mst. Amina Bibi before the Judicial Magistrate, PW-10, however, we have yet to see as to whether the said confession which was later retracted by her was voluntary and true. Indeed, we have no doubt in our mind that the promptly recorded confession even if it is retracted can well be made as ground for the conviction of the accused and can also be considered as a corroborative piece of evidence under Article 43 of the Qanun-e-Shahadat Order, 1984 against the co-accused provided that the said confession is true and voluntary. It is evident from record that the appellant Mst. Amina Bibi after the commission of alleged crime was in the house of her in-laws, wherefrom she was arrested. She was charged on 27.08.2015 by the father-in-law and brother-in-law, however, on the same date she was not arrested and on the following day i.e. 28.08.2015 she was arrested and produced before the Judicial Magistrate for recording of her confession. Thus, before recording her confession she was in custody of her in-laws, therefore, in such circumstances, it was incumbent upon the Judicial Magistrate to have provided her an atmosphere where she should have felt no signs of fear in her mind with full assurance that in case she was not guilty or not making confession voluntarily then in that case she would not be handed over back to the police.

2. However, even if it is presumed that it was promptly recorded confession and voluntary, then the contents of the said confession does not appear to be true because in the said confession she had stated that she had developed illicit relations with the co-accused Ghulam Sardar. The said illicit relations were known to her cousins, who had leveled allegation of illicit relations against them and subsequently she was also seen by her husband in the company of Ghulam Sardar. However, when the complainant Muhammad Hazrat and Said Malook appeared before the Court as PW-1 and PW-2 respectively they did not mention about such relations before the Court. Whereas the father-in-law Muhammad Hazrat has admitted in his cross-examination that he along with his son and daughter-in-law were residing in a house having a common boundary wall. Both the witnesses have further admitted that they do not know about any illicit relations between the accused. Even the Investigation Officer, while appearing as PW-8 has also admitted during cross-examination that according to the CDR data on the same day i.e. 25.8.2015 there was no conversation between both the accused. In the said confessional statement, the appellant Mst. Amina Bibi did not say that she was present at the time of murder of the deceased in the jungle. Whereas addition made in the site plan, Ex. PW-8/1 by the Investigation Officer on the pointation of the co-accused Ghulam Sardar, Mst. Amina Bibi was shown present at the place of occurrence at point No. 3. Thus, the contents of the confession recorded by her is not corroborated by the other evidence, therefore, the same does not appear to be true.

3. As stated above, the retracted confession if confidence inspiring can be made a ground for conviction of the accused, however, when the same appears to be untrue and involuntary, it would not be safe to solely rely on the said confession for conviction of the accused without further corroboration of the said confessional statement through confidence inspiring circumstantial evidence. Thus, in the circumstances, the benefit of doubt must be given to the accused/appellants. The alleged articles recovered from the house of the accused are ordinary tools of farming and there is no evidence that the same were used in commission of offence.

4. Similarly, it is settled law embodied in Article 43 of the Qanun-e-Shahadat Order, 1984 that the confession of the accused facing joint trial is only a corroborative piece of evidence against the co-accused, which requires strong corroboration. In the present case, when we have disbelieved the said confession against its maker i.e. the appellant Mst. Amina Bibi, then the same has no evidentiary value against the co-accused Ghulam Sardar. Even otherwise, there is no other corroborative piece of evidence available on the file, which connects the co-accused Ghulam Sardar with the commission of offence. In this regard reliance is placed on the judgment of the august Supreme Court of Pakistan titled "Mushtaq and others v. The State (2012 SCMR 109)", wherein it was held that:- "As the accused did not admit to have killed the deceased, therefore, he could not be held responsible for killing on the confessional statements of co-accused."

2019 P Cr. L J 806

[Provincial Ombudsman (Sindh)]

Before Justice (Retd.) Shahnawaz Tariq, Ombudsman

FAHAD FARUQUI----Appellant

Versus

SZABIST through President and another----Respondents

Appeal No.01(KHI-S) of 2017, decided on 23rd October, 2018.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss. 2(l) & 2(n)---'Organization' and 'workplace'---Scope---Sexual harassment---Complaint filed by a student against Assistant Professor of a university---Question as to whether the student, not being an employee of the university, could file a complaint before the Ombudsperson---Held, that provisions of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act'), were fully applicable upon all the educational institutions---Any student or employee or officer of the educational institution could file a complaint for causing sexual harassment and the management was legally competent to constitute the inquiry committee to conduct the proceedings against the accused to thrash-out the truth, as envisaged under the Act.

Complainant being a student had been paying fee as charges of study to the University and in lieu of said payment, University had been providing expert services of teaching. Simultaneously, the student was also undertaking intellectual and academic work in the institution, therefore, there was an indirect contract of employment between the student and a teacher through the institution, as the entire affairs of the student and teacher were being managed and controlled by the institution under certain rules and regulations. The wisdom from the definition of 'organization' provided in section 2(l) of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') manifested that all educational institutions either controlled by the Federal Government, Provincial Government, District Government, Autonomous bodies, Semi-autonomous bodies or functioning in private capacity were entirely covered under the domain of organization as envisaged under the Act. Similarly, definition of workplace provided under section 2(n) of the Act covered all kinds of educational institutions, hence, it was not essential that student must be directly employed in said educational institution where the offence of sexual harassment had been committed. Thus, cases of the students studying in educational institution were fully covered under the canvass and definition of workplace. Even otherwise, in view of the norms of natural justice, workplace of either party was sufficient to invoke the provisions of the Act, and the wrongdoer could not be left unchecked nor he could take benefit of his illegal acts merely on the basis of legal technicalities, therefore, any student or employee or officer of the educational institution could file complaint for causing sexual harassment and the management was legally competent to constitute the inquiry committee to conduct the proceedings against the accused to thrash-out the truth, as envisaged under the Act.

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----S. 4(2)---Inquiry Committee---Procedure---Section 4(2) of the Protection against Harassment of women at the Workplace Act, 2010 ('the Act') emphasised that the Inquiry Committee shall have ample powers to regulate its own procedure for conducting inquiry proceedings to achieve the subject task, including the fixing of place and time for its sitting---No prescribed procedure or mechanism had been provided in the Act for conducting the proceedings of the complaint---Inquiry proceedings conducted by the Inquiry Committee or appeal filed before the Ombudsman under the Act were quasi-judicial in nature, thus procedure and provisions prescribed under the general laws could not be strictly applied thereupon, however, maintenance of transparency and impartiality in order to ensure dispensation of justice was essential---Procedure adopted by the Inquiry Committee could not be challenged and objected to by either party as a matter of routine or with sole object to frustrate the very purpose of inquiry proceedings or apprehending any adverse conclusion, if said party had been heard properly and was afforded opportunity to explain its position and produce relevant material in accordance with law.

(c) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss. 4 & 8---Complaint filed before Inquiry Committee or Ombudsperson---Limitation period---No specific period of limitation was envisaged in the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') for filing of harassment complaint against the accused---No complaint of harassment could be discarded or disbelieved on the account of limitation nor any offender could claim his innocence for not filing the complaint instantly after its occurrence---Delay of 178 days in the present case for lodgment of harassment complaint would not be fatal to its merits, when same was based on valid and strong grounds---Appeal filed before Ombudsperson was dismissed accordingly.

(d) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss. 4 & 8 --- Complaint filed by a student against her teacher at a university---Burden of proof---In case of any complaint for sexual harassment filed by a student, the burden should lie upon the teacher to clarify his position to refute and nullify the allegations levelled against him, as he was in a dominating, commanding and authoritative position.

(e) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss. 4 & 8---Complaint filed by a student against her teacher at a university---Derogatory remarks made by teacher to insult or cause slur on character of any student in his/her presence or absence or in presence of other students---Such acts clearly fell within the ambit of Protection against Harassment of Women at the Workplace Act, 2010.

Ubaid-ur-Rehman for Appellant.

2019 P Cr. L J 26

[Balochistan (Turbat Bench)]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

KHAIR MUHAMMAD and another---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos. T-32 and T-34 of 2017, decided on 10th January, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for the murder of son of the complainant---Record showed that Medical Officer confirmed that the deceased had received two bullet injuries on his person---Investigating Officer had also examined the deceased and prepared the inquest report and confirmed bullet injuries on his person---Defence had also not disputed the unnatural death of deceased---Ocular account had been furnished by witnesses including complainant, the father of the deceased---Complainant had correctly stated the date, time and place of occurrence, the manner in which the deceased had left the house and after few minutes of his departure, the hearing of fire shots by the prosecution witnesses, seeing the accused persons running in the street duly armed and laying of deceased in the house of accused in pool of blood---Accused were correctly identified by the prosecution witnesses in the court---Statement of other eye-witness of the occurrence was in line with the statement of complainant and correctly narrated the whole story as narrated by the complainant and throughout his evidence, the defence had failed to give jolt, dent or shake his testimony---Statements of said two witnesses had reflected that not a slightest doubt had come on record favouring the defence---Accused persons and the prosecution witnesses were residents of same vicinity as such there was no chance of mistaken identity and more particularly, the dead body of the deceased was found in the pool of blood in the house of accused---Blood-stained earth was collected from the said house of the accused and even empties were also recovered therefrom---Admittedly, the crime was not witnessed directly by any of the prosecution witnesses, however from the circumstances of the case it had been firmly proved and established initially the deceased went to the house of accused and after hearing fire shots accused were found running in armed condition in the street and dead body of the deceased was recovered from the house of accused---After arrest, the co-accused had confessed his guilt by recording his disclosure, followed by the recovery of crime weapon on his pointation---Empties recovered from the place of occurrence and the pistol recovered on the pointation of the accused were sent to Forensic Science Laboratory for examination, which matched---Call Detail Report of cell phone reflected that on the relevant night, telephonic contact was made in between the deceased and the accused---All the circumstances had interlinked one piece of evidence to another and in that manner, the chain of evidence was completed and all the pieces of circumstantial evidence had connected the accused with the commission of crime---Son of the complainant was murdered in a brutal manner and it was not believable that he would substitute the real culprits with the accused---Circumstances established that accused were responsible for the murder of the deceased and the defence had failed to point out any material illegality, irregularity or infirmity in the case of prosecution warranting interference---Appeal was dismissed in circumstances.

Nabi Gul v. The State 2016 YLR 1013; Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 and Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 rel.

(b) Criminal trial---

----Witness---Interested witness---Evidence of interested witness---Scope---Mere relationship of the witness inter se and with the deceased was not sufficient to term him/her as interested witness, unless it was found that there was any previous enmity, ill-will between the parties and the witness had a motive to falsely implicate the accused in the case.

Khizar Hayat v. The State 2011 SCMR 429 rel.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, common intention---Appreciation of evidence---Disclosure of accused---Effect---Disclosure of accused relating to discovery of new facts or recovery of any incriminatory evidence, would be admissible under the provisions of Art. 40 of Qanun-e-Shahadat, 1984.

(d) Criminal trial---

----Motive---Scope---Motive was not a necessary component of crime---Weakness or absence of motive was not a factor to be essentially considered for the purpose of acquittal.

Rehmatullah Barech for Appellant.

Sudheer Ahmed Baloch, D.P.G. for the State.

Tahir Ali Baloch for the Complainant.

2019 P Cr. L J 118

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Abdullah Baloch, JJ

RIAZ AHMED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. (s) 134 of 2016, (s) 01 of 2017 and Criminal Revision Petition No. (s) 12 of 2017, decided on 12th March, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Prosecution case was that accused and co-accused persons entered into the house of brother of complainant; co-accused caught hold the victim, while the accused made firing on the victim, which hit him near his mouth and he died---Ocular account of the occurrence had been furnished by the sole witness, who was complainant and real brother of the deceased---Complainant was cross-examined at length, but the defence failed to de-track the witness from his line---Defence had objected that statement of sole eye-witness being interested one was unsafe to award conviction to the accused---Statement of sole eyewitness was faultless, unimpeachable and confidence-inspiring---Conviction could be awarded and maintained provided there were no other circumstances which could be fatal to the prosecution case or caused a doubt in a prudent mind as to the guilt of the accused---Mere fact that the complainant was brother of the deceased, was no ground to hold him interested witness or to brush-aside his testimony declaring the same untrustworthy---Prosecution had proved its case against the accused persons without any shadow of doubts---Appeal was dismissed accordingly.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Khizar Hayat v. The State 2011 SCMR 429 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---FIR was lodged promptly---Scope---Incident had taken place at about 8.00 a.m. and the FIR was lodged promptly at about 10.00 a.m., while all the three accused persons were nominated in the FIR---Prompt lodging of FIR had ruled out the concept of deliberation or consultation.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive, not proved---Scope---Motive was essential component of a crime---Cases in which the motive had not been established or proved or shrouded in mystery or was not alleged, convictions could be passed and maintained.

Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 and Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non recovery of crime weapon---Effect---Non-recovery of crime weapon was immaterial as the incident had taken place on 28th November, 2015 and the accused persons, soon after the commission of crime, absconded---Accused was arrested on 17th January 2016, meaning thereby that the accused had sufficient time to dispose of or eliminate the crime weapon---Recovery of crime weapon could only be a piece of supporting evidence and the prosecution had to prove its case independently---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 rel.

Naveed Ahmed Qambarani and Abdul Jalil Lehri for Appellants.

Jamil Ahmed Gajani, Additional P.-G. for the State.

Nemo for the Complainant.

2019 P Cr. L J 161

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

ABDUL REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 66 and Murder Reference No. 1 of 2016, decided on 31st July, 2018.

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

----Ss. 302(b)& 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about five hours in lodging the FIR---Effect---Incident took place on 30.11.2014 at about 12.30 p.m., but the matter was reported to the police for registration of FIR at 5.00 p.m. with unexplained delay of about five hours---Facts remained that after the occurrence, the injured was shifted to the hospital and the complainant along with his relatives were busy in saving the life of injured, which was prime consideration---Said facts definitely took considerable time and police station was five kilometers away from the place of occurrence--- Such delay was not fatal to the case of prosecution.

(b) 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 and co-accused persons, armed with knives, went to the house of brother of the complainant and caused him grievous injuries---Ocular account of the incident was furnished by four witnesses including complainant---Complainant was not eyewitness of the incident, and he, after receiving telephonic information regarding the incident, reported the matter to the police---Two prosecution witnesses reached the place of incident, shifted the injured to hospital and identified the accused but did not assign any role of causing knife injuries to the deceased---Son of deceased/witness had given a detailed account of the incident by attributing the entire responsibility to the accused in respect of giving knife injuries resulting in unnatural death of his father on the day of occurrence---Said witness remained consistent and firm regarding his stance about the role of the accused in perpetrating the alleged offence---During cross-examination, said witness remained stuck to his stance and despite lengthy cross-examination, defence could not shake his confidence and nothing beneficial to the accused could be surfaced---Said witness was independent, natural and trustworthy and there was no lawful justifiable cause to discard his statement---Son of deceased could have no motive to falsely implicate the accused---Circumstances suggested that it could not be expected from a son that he would let the real culprit go scot-free by implicating and giving the role of causing fatal knife injuries to innocent person---Record showed that medical evidence fully supported the ocular account furnished by the son of deceased/witness with regard to death of the deceased as a result of sharp weapon injuries---Allegation against the accused being that of causing knife injuries to the deceased, therefore, it was quite safe to say that ocular account was fully supported with the medical evidence---Circumstances established that prosecution had proved its case against the accused, who effectively gave knife blows to the deceased causing him fatal injuries, resulting into his unnatural death--- Appeal against conviction was dismissed in circumstances.

Ijaz Ahmed v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-recovery of crime weapon from the possession of accused---Scope---Mere non-recovery of crime weapon from possession of the accused was not enough to disbelieve the direct evidence---Recovery of crime weapon, related to human body and could only be served as a piece of supporting evidence, if the case was otherwise proved by other evidence independently.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

(d) Criminal trial---

----Witness---Chance witness---Evidence of---Scope---If a witness had reasonably explained his presence at the spot, he could not be said to be a chance witness.

Anwar Shamim v. The State 2010 SCMR 1791 rel.

(e) Criminal trial---

----Witness--- Related witness--- Statement of related witness---Reliance---Scope---Mere relationship between the witnesses and the deceased was not enough to discard their evidence.

Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

(f) Criminal trial---

----Evidence---Solitary statement of eyewitness---Scope---Conviction could be based upon the evidence furnished by a solitary witness, if it was of unimpeachable character and confidence inspiring.

Gulistan v. The State 1995 SCMR 1789; Muhammad Mansha v. The State 2001 SCMR 199 and Niaz-ud-Din and another v. The State and another 2011 SCMR 725 rel.

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

----S. 302(b)--- Qatl-i-amd, common intention--- Appreciation of evidence---Motive---Scope---If the prosecution had succeeded in establishing the offence then presence of motive or no motive would not be a ground for awarding lesser punishment to the accused---Lack of motive or weakness thereof was immaterial to withhold the normal penalty of death in murder case when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.

Muhammad Amin v. Muhammad Khan and others 2002 SCMR 1473; Muhammad Akbar and others v. The State PLD 2004 SC 44 and Muhammad Amin alias Irfan v. The State 2004 SCMR 1676 rel.

Muhammad Ayub Tareen for Appellant.

Nasibullah Kasi for the Complainant.

Ameer Hamza Mengal, Deputy Prosecutor-General for the State.

2019 P Cr. L J 247

[Balochistan (Turbat Bench)]

Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J

HALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (T) 43 of 2017, decided on 25th April, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Eye-witness had correctly stated the date, time, the place of occurrence and the manner in which alleged occurrence had taken place---Said witness had correctly identified accused in the court---Other eye-witness of the occurrence, being nephew of the deceased, had fully corroborated the contents of Fard-e-bayan, FIR as well as the statement of other eye-witness---Said witness had attributed the role of firing to accused, while he had mentioned the presence of co-accused and absconding accused---To mention the name of each and every witness in the fard-e-bayan was not necessary---Both the eye-witnesses being the dwellers of the house where the occurrence had taken place, their presence in the house was natural---FIR was lodged promptly without any delay; while the Investigating Officer had recorded the statements of both the eye-witnesses soon after the occurrence; that fact not only ruled out the concept of planting the said witnesses, but also established their presence at the relevant time of occurrence---Testimonies of said witnesses could not be discarded from consideration solely on the ground that their names did not appear in the Fard-e-bayan---Case of prosecution was further strengthened by the recovery of crime weapon/Kalashnikov from the possession of accused---Empties and Kalashnikov were sent to Forensic Science Laboratory for analysis and it was confirmed that empties were fired from the recovered Kalashnikov---Mere relationship of witnesses with the deceased was no ground to discard their testimony, if their evidence was found entirely independent and truthful---Evidence of said witnesses without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Evidence of related witnesses who were not found inimical and were confidence inspiring, would hardly need any corroboration---Parties were known to each other previously and the question of mistaken identity of the real culprits did not arise---Substitution, was a rare phenomenon---Appraisal of direct and circumstantial evidence coupled with medical evidence, it was fully established that accused was responsible for the murder of the deceased and he had rightly been convicted by the Trial Court.

Muhammad Akram v. The State 2015 YLR 116; Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allah Ditta v. The State PLD 2002 SC 52 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Complainant, coupled with the statements of eye-witness were suggestive of the fact that co-accused, had not at all participated in the alleged crime---Prosecution had failed to establish the mens rea of co-accused to commit the crime---Motive established that dispute had arisen between the complainant party with the main accused---Co-accused though was present at the relevant time along with main accused, but no overt act had been attributed to him by the prosecution---Co-accused had played the role of idle or audience at the relevant time---Prosecution had failed to establish incriminating evidence with regard to common intention or common object of co-accused to commit murder of the deceased---Appeal was allowed to the extent of co-accused, who was acquitted of the charge, while conviction and sentence awarded to main accused by the Trial Court were maintained.

Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v. The State 2012 PCr.LJ 1263 and Hakmin Zafar and another v. The State 2017 YLR 232 ref.

Zahoor Ahmed Baloch for Appellant.

Sudheer Ahmed and Muhammad Yahya Baloch, D.P.G. for the State.

2019 P Cr. L J 297

[Balochistan]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

The STATE through Additional Prosecutor-General---Appellant

Versus

FAIZ MUHAMMAD alias FAIZULLAH and others---Respondents

Criminal Acquittal Appeal No. 302 of 2013, decided on 13th June, 2018.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(e) & 25---Criminal Procedure Code (V of 1898), S. 417---Kidnapping for ransom---Appeal against acquittal---Appreciation of evidence---Death of abductee---Forensic evidence---Authorities assailed order passed by Trial Court under S. 265-K, Cr.P.C. where accused were acquitted of charge of murder of abductee after kidnapping---Authorities contested that extra-judicial confession of accused as well as recovery of dead body of abductee upon pointing of accused were sufficient grounds for conviction---Validity---Extra-judicial confession as well as confession of accused persons revealed discovery of new facts as well as discovery of remains of abductee---Forensic Science Laboratory report received in negative had diminished evidentiary value of both extra-judicial confession and confessional statement of accused---Such statements were not recorded voluntarily, otherwise accused could have pointed out exact grave of deceased and discovered remains which could have matched with blood relations---Case of prosecution was doubtful and Trial Court while delivering order of acquittal had rightly extended benefits of such doubts in favour of accused and rightly they were acquitted of the charge---Accused, after acquittal earned presumption of double innocence and acquittal orders were not interfered with until and unless it was proved on record that same was perverse, contrary to record, fanciful and not sustainable---High Court declined to interfere in judgment passed by Trial Court as same was neither perverse, fanciful nor ridiculous or contrary to record rather same was based on proper appraisal of material available on record---Appeal was dismissed in circumstances.

Abdul Latif Kakar, Additional P.-G. for Appellant/State.

2019 P Cr. L J 337

[Balochistan]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

MUHAMMAD ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 235 of 2017, decided on 29th May, 2018.

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

----Ss. 302, 324, 109 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism--- Appreciation of evidence--- Benefit of doubt---Prosecution case was that the accused along with absconding accused being armed with weapons entered into Masjid and made firing upon brother and father of complainant, due to which his brother died at the spot while his father received serious injuries---Accused persons made severe aerial firing with the help of unknown accused persons to spread terror and panic in the area---Motive behind the occurrence was stated to be a matrimonial dispute---Prosecution had produced twelve witnesses including complainant and injured to prove the charges---All the witnesses made contradictory statements and certain dishonest improvements, and also failed to justify their presence at the relevant time---Witnesses had stated that two accused persons entered into the Masjid and made firing upon the victims, but one of the witnesses had stated that three accused persons participated in the crime---Pesh-Imam of Masjid as a prosecution witness had fully exonerated the present accused from commission of crime by stating that two muffled face persons entered the Masjid and made firing upon the victim party---Statement of complainant and other witnesses were silent as to whether the accused persons had concealed their faces with muffles or otherwise---Record showed that some of the witnesses had made attempt to conceal their relations with the victim party, but their such relations were revealed through the statements of other witnesses---Prosecution case was that the accused while entering into Masjid, shouted that the members of victim party be separated and thereafter, they made firing upon the deceased---Fact remained that complainant and a witness were also sons of injured and the accused could easily target them---All the witnesses belonging to the victim party could be easily targeted, but only the deceased and his father were hit and the remaining witnesses including the brothers of deceased were let free---Presence of complainant and his brother being sons of injured at the place of occurrence was doubtful---Such fact did not appeal to logic that by killing a person in presence of his real brothers, accused would not attempt to cause any injury/kill the prosecution witnesses (brothers) leaving them for evidence to be hanged---Conduct of all the witnesses appeared to be unnatural and did not appeal to logic---Circumstances established that prosecution had failed to prove its case 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 sentences recorded by the Trial Court.

Muhammad Farooq v. State 2006 SCMR 1707; Dohla v. State 2002 PCr.LJ 690 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302, 324, 109 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Record revealed that accused was subjected to investigation, but Investigating Officer failed to recover crime weapon from his possession or on his pointation---Recovery of empties from the place of occurrence, thus, was not helpful to the case of prosecution---Clothes worn by the deceased and injured at the relevant time were taken into possession, but the fact remained that the same were washed and cleaned---Recovery of washed clothes diminished an important circumstantial piece of evidence.

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

----Ss. 302, 324, 109 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Medical evidence---Scope---Medical evidence was only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used and did not constitute any corroboration about the identity of accused persons to prove their culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Accused was entitled to be extended benefit of doubt as a matter of right---Accused could not be deprived of benefit of doubt, merely because there was only one circumstance, which created doubt in the prosecution case.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Najam-ud-Din Mengal for Appellant.

Habib Ullah Gul, Additional P.-G. for the State.

2019 P Cr. L J 442

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ABDUL BAQI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 306 and Criminal Revision Petition No. 14 of 2012, decided on 19th May, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Application for enhancement of sentence by complainant---Murder was unseen not directly witnessed by any of the witnesses---Entire case of prosecution rested upon circumstantial evidence, as the crime had taken place within the boundary walls of the office of the deceased at the time when all the other shops/offices were closed---Prosecution had produced circumstantial evidence in the shape of extra judicial confession coupled with the recovery of crime weapon---Matching of crime empties, had further strengthened the case of prosecution---Extra judicial confession had been recorded by accused voluntarily---Prosecution through solid circumstantial evidence had established the charge against accused---Motive had been established---Crime being unseen and there being no single witness who had directly witnessed the crime, would be mitigating circumstance---Trial Court was justified by sentencing accused to imprisonment for life---Complainant having failed to establish case for enhancement of sentence, revision petition filed by the complainant for enhancement of sentence, was dismissed, in the circumstances.

Muhammad Amjad v. The State PLD 2003 SC 704 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd---Conviction on the sole basis of extra judicial confession---For awarding conviction on the basis of extra judicial confession, three-fold proof was required i.e. firstly, it was in fact made; secondly; that it was voluntarily made; and thirdly, it was truly made---Judicial or extra judicial confession could be made sole basis for conviction of an accused, if the court was satisfied and had believed that it was true and voluntary and was not obtained by torture, coercion or inducement.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813 ref.

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

----Art. 40---Admissibility of information conveyed by accused---If any incriminatory material related to the case was recovered, or any fact was discovered in consequence of the information conveyed by accused, then the information so received could be admissible in evidence; because the presumption would be towards its truthfulness.

Muhammad Akram Shah for Appellants.

Yahya Baloch, D.P.G. for the State.

Nemo for the Complainant.

2019 P Cr. L J 573

[Balochistan]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

NASEER AHMED and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 401, 415 and 442 of 2017, decided on 31st July, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prosecution case was that accused and his co-accused persons murdered brother of the complainant by strangulation---Record showed that accused, before prosecution witness, had disclosed that all the accused persons were friends of the deceased and the accused persons made a plan to commit unnatural offence with the deceased---Accused persons took the deceased to the house of co-accused and made attempt to persuade him for unnatural offence, but deceased was reluctant and started shouting that he would inform the police---Co-accused committed his murder by strangulation---Accused got recovered motorcycle and pointed the place of occurrence and the place where accused persons threw the dead body of the deceased---Said disclosure of accused was recorded in presence of Police Official/witness, who had fully corroborated the same on all counts---Co-accused whilst narrating the story had stated about the conspiracy for calling the deceased in his house, persuading the deceased for unnatural offence and his shouting and reluctance, which ultimately resulted into his murder with handkerchief by him, while accused and other co-accused caught hold of the deceased---After committing his murder, they put the dead body in a sack and threw the same in the field---Disclosures of the accused persons brought new facts regarding motive behind the occurrence, i.e. attempt to commit unnatural offence with the deceased, which fact earlier was not known to anyone---In pursuance of disclosure, recovery of motorcycle and the mobile phone of the deceased was effected on the pointation of co-accused from his house---Recovery of trolley/handcart, sack and the handkerchief corroborated the contents of the disclosures---Accused persons had confessed that they had committed the murder by strangulation with handkerchief, while at the time of discovery of dead body, said handkerchief was found tightened on the neck of deceased and that fact was confirmed by Medical Officer---Discovery of new facts in the disclosures, which were not previously known to anyone followed by the recovery of incriminating articles were suggestive of the fact that the disclosures made by the accused persons were voluntary thus admissible---Accused persons had failed to bring on record any mala fide of the police for their false implication---Circumstances established that the prosecution through confidence inspiring circumstantial evidence had proved the charge against the accused persons---Appeals, thus being devoid of merits, were dismissed in circumstances.

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

----Art. 40--- Disclosure of accused--- Admissibility--- If any incriminatory material related to the case was recovered or any fact was discovered in consequence of the information conveyed by the accused persons, the information so received would be admissible in evidence within the purview of Art. 40 of the Qanun-e-Shahadat, 1984.

Muhammad Amjad v. The State PLD 2003 SC 704 and Zakir Khan and others v. The State 1995 SCMR 1793 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-appearance of complainant---Effect---Non-appearance of the complainant was not fatal for prosecution if he was not eye-witness of the occurrence nor had nominated any accused.

Iqbal Ahmed Kasi for Appellants.

Shabir Ahmed Rajput for the Complainant.

Habibullah Gul, Additional Prosecutor-General for the State.

Date of hearing: 23rd July, 2018.

2019 P Cr. L J 769

[Balochistan]

Before Abdullah Baloch, J

BAHLOOL KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 285 of 2018, decided on 9th November, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 164---Prevention of Electronic Crimes Act (XL of 2016), S. 21---Offences against modesty of a natural person and minor---Bail, refusal of---Crime against society---Scope---Prohibitory clause of S. 497, Cr.P.C.---Scope---Complainant, a lady alleged that the petitioner, through Facebook messenger, demanded money by threatening/blackmailing her to upload her private objectionable pictures which would cause her character assassination and damage to her reputation---Petitioner contended that offence with which he had been charged did not fall within prohibitory clause of 497, Cr.P.C.---Complainant contended that two mobile phones had been recovered from the petitioner through which he made number of messages---Validity---Record revealed that messages in question suggested that the petitioner had threatened the complainant to upload her objectionable pictures on the website in case she would fail to pay certain amount to him---Apart from conversation made in between the parties regarding demand of money, said messages also carried the request on the part of complainant for deleting said pictures---Such dissolute act had put a young lady, being a mother and wife, into perennial embarrassment and ridicule within and outside family fold---Investigation revealed that not only the petitioner had recorded his disclosure admitting his guilt of capturing objectionable pictures of the complainant without her knowledge, but also had recorded his confessional statement under S. 164, Cr.P.C. before the concerned Magistrate, whereby once again he had confessed his guilt---Offence with which the petitioner was charged though did not fall within the ambit of prohibitory clause of S. 497, Cr.P.C., but the fact remained that merely on the basis of said ground the petitioner could not claim his release on bail as a matter of right---Charged offence being not only heinous in nature, but also dangerous and harmful for society coupled with the fact that the same would give courage to others to play with the modesty of public-at-large---Both the Courts below had rightly restrained themselves in enlarging the petitioner on bail---Bail was refused to the petitioner, in circumstances.

Usman Bin Mehmood v. The State and another 2018 PCr.LJ 408 ref.

Naseer Ahmed for Applicant.

Allahuddin Baloch, Assistant Attorney General along with Syed Abid Ali, S.I./I.O. for the State.

2019 P Cr. L J 832

[Balochistan]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

TAREEN alias BADO and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 328 and Murder Reference No. 7 of 2016, decided on 11th September, 2018.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Record showed that the unnatural death of deceased and injured witness were not disputed---Death certificate of the deceased reflected that he had received multiple bullet injuries on his abdomen, on right hand and on his forearm---Medico-legal Certificate of injured reflected that he had received firearm injury on right side of abdomen caused with firearm---Prosecution had succeeded through medical evidence that deceased died due to unnatural death as well as receiving of bullet injury on his abdomen by the injured.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Prosecution case was that police party heard firing shots, while on patrolling duty and proceeded towards the place of firing and found accused making firing shots, while one person died on the spot due to firing and the another became seriously injured---Accused was apprehended on the spot and a pistol was recovered from his right hand---Ocular account of the occurrence had been furnished by nine witnesses including complainant---Complainant of the case, SHO of the concerned police station, had mostly reiterated the contents of his fard-e-bayan---Eye-witness of the occurrence, member of police patrolling, had fully corroborated the statement of complainant and apprehending of the accused red-handed from the place of occurrence along with the crime weapon---Said witnesses had correctly stated the date, time, the place of occurrence and the manner in which they heard the firing shots, their arrival at the place of occurrence, apprehending the accused red handed and effecting the recovery of crime weapon along with two empties from the place of occurrence---Statements of said witnesses cleared the acid test of lengthy cross-examination and the defence had failed to give slightest dent or damage to their testimony---Said witnesses did not know the accused previously, thus they had no ulterior motives to falsely implicate the accused in the crime---Injured witness had himself sustained bullet injury on his abdomen, thus, his presence at the place of occurrence was natural and could not be disputed in any manner---Statements of injured witness/brother of deceased and eye-witness/uncle of deceased were similar with each other on all counts---Said witnesses had correctly identified the accused in the Trial Court and had correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place---Defence objected that only interested witnesses were produced and the case of prosecution lacked independent corroboration, but injured/brother of deceased faced life-threatening attack and luckily survived from death, while his brother was murdered in his presence---To declare the witness as interested witness or to believe that he might involve innocent persons leaving the real culprits was not justified in circumstances---Nature of injuries received by injured could not be said to be self-inflicted and even the defence had not disputed the same to be self-inflicted or the same were old injuries, as such, legally the statement of the injured witness could not be challenged---Circumstances established that prosecution had successfully proved the charge but failed to establish the motive behind the occurrence and the complainant party had tried to camouflage the actual facts from the court---Record showed that prior to incident some altercation had taken place in between the parties---Accused was in old age of 72 years thus under the peculiar circumstances of the case, it would not be justified to award capital punishment of death to the accused; in such state of affairs, appeal was dismissed while upholding the conviction of accused and sentence under S. 302(b), P.P.C. was converted into imprisonment for life.

Farooq Khan v. State 2008 SCMR 917 rel.

(c) Criminal trial---

----Witness---Police Official as witness---Reliance---Scope---Police Officials were as good witnesses as the private witnesses---Testimony of such witnesses could not be discarded solely on the ground that they were Police Officials until and unless the defence succeeded in proving any ill-will or mala fide on their part.

(d) Criminal trial---

----Witness---Solitary statement of injured witness---Scope---Solitary statement of injured witness being confidence inspiring was sufficient to convict the culprit.

Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199 rel.

(e) Criminal trial---

----Witness---Evidence of related/interested witness---Scope---Evidence of related witness who were not found inimical and were confidence inspiring would not need any corroboration.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of crime weapon---Reliance---Scope---Admittedly, accused was caught red-handed soon after the occurrence and the police snatched the crime weapon (pistol) from the accused---Two empties were also recovered from the place of occurrence---Investigating Officer sent the recovered empties along with the recovered crime weapon to Forensic Science Laboratory for analysis---Forensic Science Laboratory had issued its report, which reflected that the empties recovered from the place of occurrence were matched with the crime weapon snatched from the accused by the police---Recovery of weapon of offence from the accused remained consequential, in circumstances.

Muhammad Akram Shah for Appellant (in Criminal Appeal No.328 of 2016).

Abdul Latif, Additional P.-G. for the State (in Criminal Appeal No.328 of 2016).

Sarwar Khan for the Complainant (in both Criminal Appeal and Murder Reference).

Muhammad Ikram Shah for Respondent (in Murder Reference No.7 of 2016).

2019 P Cr. L J 957

[Balochistan]

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

GUL HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 150 of 2018, decided on 29th October, 2018.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotic---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Record showed that the alleged recovery was effected on 1.1.2016 at about 5.30 p.m., but Forensic Science Laboratory Report showed that the sample were received by the Expert on 26.1.2016 with delay of about twenty five days and such delay had not been explained---Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, provided that such exercise was required to be completed within 72 hours of the recovery---No plausible explanation was brought on record by the prosecution in that regard---Said delay was fatal to the prosecution case---Prosecution had failed to examine the Police Officer, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcels of the samples of charas were lying about twenty five days, which had made the case of prosecution doubtful---Safe custody and safe transmission of the seized narcotic had not been established---Report of the Forensic Science Laboratory did not contain the full protocols of the test applied for, therefore, the same was not reliable---Said report being inconclusive and unreliable could not be made basis to sustain conviction and sentence of the accused---Appeal was allowed and accused was acquitted, in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527 rel.

Habib-ur-Rehman for Appellant.

Abdul Mateen, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1033

[Balochistan]

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

AMEER MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 229 of 2018, decided on 30th October, 2018.

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

----Ss. 365-A & 34---Kidnapping for ransom, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for kidnapping the brother of complainant for ransom---Record showed that alleged abductee had stated in his statement that in the afternoon of 30.6.2015 he left his station in a taxi; after going a little ahead, the driver and rest of the three passengers armed with pistols and Kalashnikov suddenly got over him and blind folded him on board the taxi and chained him into a room of a house, where another person was brought and chained with him---Accused had demanded ransom of Rs. 30,00,000/- for his release and subsequently, he was released on 10.7.015 in lieu of payment of Rs. 13,00,000/- paid by his father as a ransom money---Prosecution had failed to produce the father of abductee to corroborate his statement---Statement of abductee without supporting evidence would be excluded from consideration, in circumstances---Accused after 13th day of his arrest, was put to a test of identification parade in presence of Judicial Magistrate---Accused was identified by abductee, but without any reference to the role allegedly played by him during the occurrence, due to which the identification parade had lost its value---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Muhammad Fayyaz v. The State 2012 SCMR 522 rel.

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

----Art. 129(g)---Withholding of material evidence in criminal case---Effect---If a best piece of evidence available with a party was withheld by it, the presumption as enumerated under Art. 129(g) of Qanun-e-Shahadat, 1984 would come into play---Presumption would ultimately be drawn against the prosecution that the said witness(s) was/were not supporting the concerned party.

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

----Ss. 365-A & 34---Criminal Procedure Code (V of 1898), S. 164---Kidnapping for ransom, common intention---Appreciation of evidence---Confessional statement---Scope---Confessional statement of accused recorded under S. 164, Cr.P.C. by the Judicial Magistrate showed that the alleged occurrence took place on 30.6.2015 and the accused was arrested on 16.7.2015---Accused was produced before Judicial Magistrate on 30.7.2015 after 14th day of his arrest for recording his statement under S. 164, Cr.P.C. but such delay had not been explained---Said unexplained delay in recording of the confessional statement of the accused had lost its evidentiary value.

Khan Muhammad and another v. The State 1981 SCMR 597; Shoukat Saeed v. the State PLD 1978 Quetta 1 and Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----S. 164---Delay in recording confessional statement of accused---Effect---Delay of over 24-hours would normally be fatal to the acceptance of judicial confession.

Naqeebullah's case PLD 1978 SC 21 rel.

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

----Art. 22---Delay in conducting identification parade---Effect---Delayed identification test, possibility of the witness having seen the accused prior to the identification test conducted by the Judicial Magistrate could not be ruled out.

Nazeer Ahmed v. Muhammad Iqbal and another 2011 SCMR 527 rel.

Aminullah Kakar for Appellant.

Abdul Mateen, Deputy Prosecutor-General for the State.

2019 P Cr. L J 1355

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL AHAD---Appellant

Versus

The STATE through Special Prosecutor ANF, Balochistan---Respondent

Criminal Appeal No. 368 of 2018, decided on 12th March, 2019.

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

----S. 9(c)---Recovery of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that 200 slabs hashish from boot of the car, driven by accused, was recovered, each slab was weighing 500-grams, total weighing 100-Kgs---100-grams from each slab was separated for analysis, total weighing 20-Kgs and the same was sealed in a parcel, while the remaining narcotic was sealed in other parcels---Record showed that the prosecution had neither cited the name of the person in the list of witnesses who had taken the narcotic to Forensic Science Laboratory nor he was produced in the Trial Court for recording his statement, which created doubt with regard to the safe custody and safe transmission of the contraband---Entire recovery of the contraband was effected from the vehicle/car---Complainant deposed that at the time of interception, the accused-appellant owned the vehicle and stated that the said vehicle had still not been transferred in his name; however, while recording statement, the accused-appellant disowned the said vehicle---Prosecution ought to have conducted investigation with regard to ownership of the vehicle, but that had not been done and the entire case was silent with regard to the same---Registration documents of the vehicle were also not taken into possession---In absence of any such evidence, accused-appellant could not be held responsible for the recovery of alleged contraband from the vehicle, ownership whereof was disputed---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Siraj-ud-Din v. The State Criminal Appeal No. 579 of 2017 rel.

(b) Administration of justice---

----If a specific procedure was provided for doing an act in a specified procedure, such act was required to be done in that manner, deviation from such procedure would amount to violating the law.

Muhammad Yousaf v. The State 2017 MLD 1471 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Accused would be entitled to get the benefit of a slightest doubt.

Muhammad Shabir Rajput for Appellant.

Shams-ud-Din Achakzai, Special Prosecutor, ANF for the State.

2019 P Cr. L J 1456

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL RASHID and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 238 and Criminal Revision Petition No. 25 of 2016, decided on 24th April, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that the accused along with his co-accused/sons committed murder of father of the complainant by firing---In order to establish the charge, prosecution had produced thirteen witnesses, perusal of which reflected that the prosecution had either produced circumstantial evidence, which was not sufficient to hold the accused responsible for the murder of deceased---Direct evidence was lacking independent corroboration produced through interested witnesses, who could not justify their presence at the relevant time---Complainant had stated that the accused made cell phone call to his father and extended threats---Other witness in his court statement had brought on record that at the relevant time, the deceased was present with him when on receipt of telephonic call the deceased became annoyed and informed him that the accused had extended him threats---Likewise, another witness being the son of the deceased had brought on record that on the same day, he also had received threats from the accused from same cell phone---Statement of another son of the deceased was alike to the statement of complainant, who had also brought on record that his father had informed him and his remaining brothers, that the accused had extended threats to him through phone---Mother of the deceased residing in the house of accused party appeared as witness, her statement was alike the statement of remaining witnesses with regard to extending threats to the deceased by the accused on phone---Statement of witnesses showed that none of them had witnessed the crime directly---Such fact had also been admitted by the witnesses in their examination-in-chief and cross examinations that they were not the eyewitness of the occurrence---Statements of the said witnesses showed that their evidence was only with regard to advancing threats to the deceased by the accused---Except one witness, the statements of remaining witnesses were silent about the time when the accused made phone call to the deceased extending threats---Evidently, no complaint or FIR was lodged by the complainant or his sons before the concerned Police Station in such behalf---Even otherwise, the Investigating Officer had failed to collect the Call Detail Report of the cell phone from the concerned cellular company---No investigation was made as to whether the cell was registered in the name of the accused or in what capacity the accused was in possession of the said cell number---In absence of any incriminatory evidence it could not be held that the accused had made any phone call to the deceased or extended threats to him or that the said cell number was in his name or in his possession---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Direct evidence---In the present case, direct evidence was produced by the prosecution through son of the deceased and a mason,who was constructing the boundary walls of the house of the accused---Son of deceased had stated that on the day of occurrence at about 9.30 a.m., he had observed fire shots by the accused upon his father, his house being located nearby the place of occurrence, he started running towards his house to bring weapon, but on his return the accused had decamped from the place of occurrence---Conduct of said witness appeared to be unnatural, as it was not appealable to logic that once father was being murdered in his presence, he instead of making an attempt to rescue him proceeded towards his house for bringing weapon---Other witness/mason had contradicted the statement of son of deceased and stated that when he heard firing shots, he along with other labour proceeded towards the place of firing and found the deceased lying in the pool of blood---Perusal of statement of said witness revealed that he had not mentioned the presence of witness/son of the deceased even at the time of making firing and even he mentioned nothing that soon after the occurrence witness/son of deceased arrived at the place of occurrence---Soon after the occurrence, complainant had arrived at the place of occurrence, but he also stated nothing about the presence of witness/son of the deceased--- Statement of mason was also silent with regard to identity of the assailants who made firing upon the deceased---Witness/son of deceased had failed to establish his presence at the time and place of occurrence---Apparently, said witness was interested witness being the son of the deceased and his statement was lacking independent corroboration---No implicit reliance could be placed upon the testimony of alleged eye-witness (son of deceased), in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Statement of interested witness---Reliance---Scope---Mere relationship of a witness with the deceased or the complainant party itself would not diminish the evidentiary value of his statement, but for making reliance on such statement, especially in heinous crime of murder, it was to be seen whether the said witness had escaped from the acid test of cross examination undamaged, unshaken or the defence had succeeded in giving jolt to his testimony.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Confessional statement of accused---Scope---Confessional statement of the accused was recorded under S. 164, Cr.P.C., but the same appeared to be untrustworthy---Accused was arrested by the police on 20th July 2015 and accordingly his remand period ended on 3rd August 2015, but he was detained in illegal confinement for a day and on 15th day of his arrest i.e. 4th August 2015, his confessional statement was recorded---Judicial Magistrate, in cross-examination had admitted that on 3rd August 2015, the accused was produced before him for remand, but it was incorrect that he was sent to judicial lock-up on 3rd August 2015---Witness had voluntarily stated that accused was sent to judicial lock up on 4th August and perhaps on 3rd August 2015 there was holiday---No plausible explanation in such behalf had been tendered by the prosecution---Confessional statement of the accused was neither true nor volunteer, in circumstances and was not of any helpful to the case of prosecution.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Medical evidence---Scope---Medical evidence had confirmed the unnatural death of deceased---Such evidence was only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but it did not constitute any corroboration qua the identity of accused persons to prove their culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If any single and slightest doubt was created, benefit of the same must go to the accused.

Tariq Pervaiz v. The State 993 SCMR 1345 rel.

Muhammad Akram Shah for Appellants.

Habibullah Gul, Additional P.-G. for the State.

Ahsan Rafiq Rana for the Complainant.

2019 P Cr. L J 1539

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

Naib Subedar NASABUDDIN, FRONTIER CORPS (SOUTH) and others---Appellants

Versus

ALI NAWAZ and others---Respondents

Criminal Acquittal Appeals Nos. 231 and 254 of 2018, decided on 29th April, 2019.

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

----Ss. 320 & 279---Qatl-i-Khata, rash driving on public way---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused-respondent, driver of oil tanker, had collided with Frontier Constabulary Post, resultantly, five persons died at the spot, the official vehicle and official weapons were damaged and driver and conductor fled away from the scene---Prosecution, in order to establish the charge had produced nine witnesses, which were not consistent and confidence-inspiring---Complainant of the case mostly reiterated the contents of his fard-e-bayan---Evidence of said witness was not helpful to the case of prosecution for the reasons that he himself had not witnessed the crime rather at the time of alleged occurrence he was 80 kms. away from the place of occurrence and received information through wireless set---Entire statement of said witness was silent to the effect as to who had told him the story of the incident in such a sequence---Admittedly, the statement of said witness was hearsay and the same was only to the extent of setting criminal machinery into motion---Statements of both the alleged eye-witnesses were contradictory with each other on certain counts---Both the witnesses had unanimously brought on record that they witnessed the crime directly---Both the said witnesses had admitted in their cross-examination that their statements under S. 161, Cr.P.C. were recorded after delay of 13-days of the incident, though they were very much present in the area---Admission of both the prosecution witnesses depicted the complete failure of the Investigating Officer to record the statements of both the said witnesses immediately---No explanation was available on the record as to why such statements were delayed for 13-days and till that the accused-appellant had voluntarily surrendered him before the police---No solid or concrete evidence was available against the accused/respondent connecting him with the commission of alleged offence---Trial Court after proper appreciation of evidence in its true perspective had rightly acquitted the accused-respondent of the charge---Appeal was dismissed accordingly.

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

----S. 161---Delay in recording the statement of witnesses under S. 161, Cr.P.C.---Effect---Such evidence could not be given that sanctity as was generally given to the evidence of a witness whose statement had been recorded promptly soon after the occurrence---Statements of prosecution witnesses under S. 161, Cr.P.C. recorded after the arrest of the accused created reasonable doubt in the case of prosecution---Witnesses appeared to have been planted by the prosecution subsequently after the arrest of the accused/respondent.

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

----Ss. 320 & 279---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-Khata, rash driving on public way---Appreciation of evidence---Identification parade---Scope---Identification of the accused/respondent in the Trial Court was doubtful---According to the case of prosecution, soon after the occurrence the culprits decamped from the place of occurrence---Investigating Officer arrested five persons on the basis of suspicious, who were subsequently discharged from the case under the provisions of S. 169, Cr.P.C.---Circumstances suggested that the Investigating Officer as well as the alleged eye-witnesses were not sure about the culprit---First Information Report was silent with regard to physique and personal appearance of the escaped accused persons---Investigating Officer after the arrest of the accused/respondent was supposed to have conducted the identification parade of the accused/respondent which was not done---Material dent caused to the case of prosecution due to failure to hold identification parade during the course of investigation, which was not curable.

Khawar v. The State 2014 YLR 2120 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance if creating reasonable doubt in a prudent mind was sufficient for acquittal of accused not as a matter of grace, but as a matter of right.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 rel.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence was attached to the order of acquittal---Interference in acquittal was unwarranted unless the same was arbitrary, capricious, fanciful or against the record.

Abdul Mateen, DPG assisted by Talat Waheed Khan for Appellants.

2019 P Cr. L J 1618

[Balochistan]

Before Rozi Khan Barrech, J

BABOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 276 of 2019, decided on 28th June, 2019.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Un-witnessed occurrence---Contradiction in medical and ocular evidence---Scope---Accused was charged, in an unwitnessed occurrence, for committing murder on the grounds that some foot prints from the place of occurrence went towards his house and that deceased had filed a complaint under Ss. 107 & 151, Cr.P.C. against accused which was pending before Magistrate---Dead body was found on the ground leading to the nearby village and residence of the accused---Prosecution had alleged that applicant had threatened the deceased of dire consequences---No one had witnessed the occurrence, which took place at odd hours of the night---Weapons of offence found at the place of occurrence were lathis and iron rods, but the record was silent about any fingerprints obtained by the investigating agency on the weapons of offence, inspite of the fact that fingerprints were available on the same---Medical evidence showed sharp weapon injuries, but the complainant alleged in his report that iron rods and dandas were recovered from the place of occurrence---Prima facie, case against accused was that of further inquiry---Investigation had already been completed and accused was not required for further investigation---Application for grant of bail was accepted, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail---Principle---Bail was not to be ordinarily granted to an accused in a murder case where trial has commenced, when there is possibility of prejudicing the merits of the case or there is a likelihood of absconsion of the accused---Holding of trial does not create any bar for the superior court who has ample jurisdiction to grant the bail to the accused if the accused is found entitled irrespective of the fact that the trial has commenced and the evidence has begun or it has been recorded or concluded.

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

----S. 497---Bail---Scope---Person who is entitled to the grant of bail is not to be kept in the jail, as even a single day of detention of an innocent accused cannot be compensated, after his acquittal at the conclusion of the case.

Khalid Ahmed Kubdani for Appellant.

Habib-ur-Rehman for the Complainant.

Saeed Ahmed Kakar, State counsel.

2019 P Cr. L J 1696

[Balochistan]

Before Abdullah Baloch, J

EHSAM-UD-DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 58 of 2018, decided on 12th April, 2019.

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

----S. 337-F(ii)---Causing badi'ah---Appreciation of evidence---Benefit of doubt---Dishonest improvements in testimony---False implication---Hearsay evidence---Scope---Complainant claimed that he went towards a shop for purchasing household articles and found a stranger in the street, he inquired about the purpose of his presence; who replied that he had come to meet the accused---Complainant informed him that the street was closed ahead and the thoroughfare was used by womenfolk---Accused who had, in the meanwhile, come out of his house started abusing the complainant as to why he had stopped his guest; took out his pistol and fired at him, due to which one bullet hit at the right leg of the complainant---Validity---Complainant failed to mention the month in which the occurrence took place---Complainant had mentioned in his complaint that on coming out in the street, he found a person, whom he enquired about the purpose of his presence in the street, but in his statement before court complainant claimed that he found an Afghan refugee coming out from the house of accused and told him that since he used to visit regularly the house of accused, therefore he should use thoroughfare meant for gents and not of ladies---Complainant in his statement before court stated that the Afghan refugee tried to restrain him, but the complaint was silent in that regard---Complainant attempted to conceal his relation with the accused, but admitted in his cross-examination that the accused was his cousin---Shopkeeper was said to be the sole eye-witness of the occurrence, but his statement was hearsay evidence as the occurrence had not taken place in his presence rather according to him he enquired from the complainant about the occurrence, who disclosed that the accused had fired upon him---Shopkeeper stated that there existed a dispute relating to land between the parties---False implication of the accused could not be ruled out of consideration as the accused while recording his statement on oath took specific plea of false implication due to previous dispute---Accused was entitled to be extended benefit of doubt as a matter of right---Appeal was accepted and the judgment passed by Trial Court was set aside, in circumstances.

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

----S. 337-F(ii)--- Causing badi'ah--- Non-recovery of weapon of offence, empties and blood-stained earth---Effect---Soon after the commission of crime, accused was arrested from his own house, but the crime weapon was not recovered from his possession---Investigating Officer, soon after the occurrence visited the place of occurrence, but did not find empties and blood-stained earth from the site---Non-recovery of crime weapon, empties and blood-stained earth created reasonable doubt with regard to occurrence at the relevant time and place---Benefit of doubt was given to accused.

(c) Criminal trial---

----Medical evidence---Corroborative value---Medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc but such evidence itself does not constitute any corroboration qua the identity of accused person to prove culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 ref.

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

----S. 337-F(ii)---Causing badi'ah---Medical evidence---Contradiction in evidence---Scope---Medical report proved that the victim received injury on his left thigh, while the complainant had stated that he received firearm injury on his right thigh---Medico-legal certificate was not in line with the assertion of the complainant---Appeal filed by accused was accepted and the judgment passed by Trial Court was set aside, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Accused cannot be deprived of benefit of doubt merely because only one circumstance was available, creating doubt in the prosecution story. [p. 1700] H

Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Jameel Ahmed Agha and Imran Khan Kakar for Appellant.

2019 P Cr. L J 1731

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD AYUB and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 38, 39, 44, 47, 50, 63 and 65 of 2016, decided on 23rd July, 2019.

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

----S. 342---Accused, examination of---Word 'shall'---Connotation---Principles of natural justice---Applicability---Scope---Use of word 'shall' in S. 342(i), Cr.P.C. indicates that examination of accused is mandatory and not discretionary---If after conclusion of trial it is found by Trial Court that any circumstances appearing in evidence against accused is lightly helpful towards his conviction then court would not be competent to take same in account without questioning him on that point so that accused may be able to explain his position properly.

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

----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 342---Criminal breach of trust, cheating, forgery and misconduct---Appreciation of evidence---Examination of accused---Complainant lodged FIR against accused persons who were government servants for criminal misconduct and bogus appointments---Statement of accused persons was recorded under S. 342, Cr.P.C. by Trial Court in a very stereotype manner---Relevant and very important incriminating pieces of evidence were not put to accused persons for their explanation/ reply---All incriminating pieces of evidence brought on record under S. 342, Cr.P.C. were not put to accused, when their statements were recorded enabling them to explain and reply same whereas, Trial Court used such piece of evidence for convicting accused---If any piece of evidence was not put to accused in his statement recorded under S. 342, Cr.P.C. same could not be used for conviction---Trial Court while passing judgment committed illegality and violated provisions of S. 342, Cr.P.C.---High Court set aside judgment passed by Trial Court and remanded matter to Trial Court to record statement of accused persons under S. 342, Cr.P.C. afresh by putting all incriminating pieces of evidence---Appeal was allowed accordingly.

Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Qaddan and others v. The State 2017 SCMR 148 rel.

(c) Administration of justice---

----Doing of a thing---Where an act was provided to be done in a particular manner it had to be done in that manner and if not done, same could not be lawful. [p. 1736] C

H. Shakeel and Naveed Ahmed Qambrani for Appellants (in Criminal Appeals Nos. 38 and 39 of 2016).

Muhammad Tahir (absent) for Appellants and Appellant in person (in Criminal Appeal No. 47 of 2016).

Naseebullah Tareen for Appellants (in Criminal Appeal No. 50 of 2016).

Syed Ayaz Zahoor for Appellants (in Criminal Appeals Nos. 44 and 63 of 2016).

T.H. Khan for Appellants (in Criminal Appeal No. 65 of 2016).

Wajahat Ghaznavi and Abdul Karim Malghani for Prosecutor-General for the State (in all appeals).

2019 P Cr. L J 1800

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 73 of 2017, decided on 19th July, 2019.

(a) Criminal Trial---

----Benefit of doubt---Scope---Duty of prosecution to prove guilt of accused beyond any reasonable doubt---Benefit of doubt must be extended to accused not as a grace but as of right.

Wajahat Ahmed v. State 2016 SCMR 2073 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Motive---Effect---Not necessary that every murder have motive but once a motive has taken, prosecution is bound to prove the same.

Liaquat Ali alias Liaqi v. State 2018 YLR 550 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Interested witness, evidence of---Disclosure before police---Effect---Witnesses were related to deceased having enmity with accused---Conviction, on the basis of interested and inimical witnesses in capital charge could not be sustainable---Such witness required independent corroboration which was lacking in the present case---Prosecution brought on record disclosure of accused made before police---Such disclosure revealed that prosecution ignored provisions of Arts. 38 & 39 of Qanun-e-Shahadat, 1984 according to which such type of evidence was inadmissible---No new facts were discovered on basis of admission/disclosure of accused---No firearm was recovered from accused even after arrest---Mere recovery of empty cartridge prior to arrest of accused was not enough to prove case of prosecution---Simply narrating story which was already in knowledge of police and complainant party could not be termed admissible---High Court set aside conviction and sentence passed by Trial Court and extended benefit of doubt to accused and acquitted him of charge---Appeal was allowed in circumstances.

Wajahat Ahmed v. State 2016 SCMR 2073; Liaquat Ali alias Liaqi v. State 2018 YLR 550; Zahoor Ilahi v. State 1997 SCMR 385; Hayatullah v. State 2018 SCMR 2092; Munir Ahmed alias Munni v. State 2001 SCMR 56; 2017 SCMR 2002 and Muhammad Arif v. State 2019 PCr.LJ 337 rel.

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

----S. 342---Statement of accused---Incriminating evidence, non-placing of---Effect---When an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to accused, same could not be considered as evidence against him.

Munir Ahmed alias Munni v. State 2001 SCMR 56 rel.

Anwar-ul-Haq Kakar for Appellant.

Abdul Latif Kakar, APG and Wajahat Khan Ghaznavi, State counsel.

2019 P Cr. L J 267

[Shariat Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

AFTAB AHMAD---Petitioner

Versus

The STATE through Assistant Advocate-General, Rawalakot---Respondent

Criminal Revision Petition No. 39 of 2017, decided on 28th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 540-A---Trial in absence of accused---Words "before the court", as used in S. 540-A, Cr.P.C.---Connotation---Accused, during trial, in his presence moved an application for exemption from personal appearance before Trial Court which was dismissed---Validity---Held; words "before the court" could not be assigned the strict meaning of personal attendance of an accused before the court, because one of the necessary elements for attracting the jurisdiction of the court under S. 540-A, Cr.P.C. was that an accused could be represented by a pleader and the court could exempt an accused from personal appearance---Accused was present before the Trial Court at the time when the application for exemption from personal appearance was moved and now he had gone abroad for earning his livelihood after filing application before Trial Court---Rejection of his application would deprive him from earning livelihood---Revision petition was accepted and accused was exempted from personal appearance.

Haji Aurangzeb v. Mushtaq Ahmad and others PLD 2004 SC 160 fol.

Sardar Amir Jameel for Petitioner.

2019 P Cr. L J 1168

[Supreme Court (AJ&K)]

Present: Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

AZHAR MEHBOOB---Appellant

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 10 others---Respondents

Civil Appeal No. 268 of 2018, decided on 15th November, 2018.

(On appeal from the judgment of the High Court dated 04.07.2018 in Writ Petition No. 71 of 2018)

Penal Code (XLV of 1860)---

----S. 302(a)---Mental Health Ordinance (VIII of 2001), S. 2(1)(m)---Pakistan Prison Rules, 1978, Rr. 104(ix) & 444---Qatl-i-amd---Defence of insanity with prayer for stopping the execution of death sentence of the convict---Scope---Plea on behalf of convict was that due to long incarceration and hardships of prison, he had completely become insane and lunatic---Application for medical treatment was made to the jail authorities, but nothing was done---Writ petition before the High Court filed to stop the execution with the prayer to issue direction for treatment of the convict, was dismissed---Validity---Jail authorities put the convict under observation of the Medical Officer for ten days as per Prison Rules, 1978 but no definite opinion was given by the Medical Officer regarding the mental health of the convict rather he only recommended that the convict should be evaluated by a psychiatrist or a medical board---Director General of Health was directed for constitution of medical board consisting of psychiatrists to make psychiatric assessment of the convict---Report of the medical board was submitted accordingly---Admittedly, no complaint regarding insanity of the convict had ever been made during the course of trial---After completion of the judicial proceedings at the verge of execution of the punishment, the application had been moved that the convict had become insane---Report of medical board showed that the convict was physically fit and except depression, no serious mental disease had been pointed out---Symptoms mentioned in the report appeared to be the result of fear of death and mere on such like ground the execution of death sentence could not be stopped---Appeal being devoid of any force was dismissed accordingly.

Mst. Safia Bano v. Home Department, Government of Punjab and others PLD 2017 SC 18 rel.

Babar Ali Khan, Advocate for Appellant.

Sardar Karam Dad Khan, Advocate-General and Raja Aftab Ahmed, Khan, Advocate for Respondents.